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MEDICI v. COMMONWEALTH


MEDICI v. COMMONWEALTH

(unpublished)


MAY 25, 1999

Record No. 0527-98-4

LAWRENCE P. MEDICI

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

David T. Stitt, Judge

Present: Judge Bray, Senior Judges Duff and
Overton

Argued at Alexandria, Virginia

MEMORANDUM OPINION[1] BY JUDGE
RICHARD S. BRAY

Jennifer A. Hess Smith, Assistant Public
Defender, for appellant.

Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.


A jury convicted Lawrence P. Medici (defendant)
of rape, second or subsequent offense, sodomy by cunnilingus,
second offense, sodomy by fellatio, second or subsequent offense,
and attempted anal sodomy. On appeal, defendant complains that
the trial court erroneously (1) permitted the Commonwealth to
introduce evidence of prior rape convictions, (2) refused to
permit a stipulation to such convictions, (3) denied a motion to
dismiss the indictment because it did not specify an offense, (4)
declined to strike two venirepersons for cause, (5) ruled that
Code Sect. 18.2-67.5:3 was constitutional, (6) admitted
evidence previously ruled inadmissible, and (7) found the
evidence sufficient to support the sodomy by cunnilingus
conviction. Finding no error, we affirm the convictions.

The parties are fully conversant with the
record, and this memorandum opinion recites only those facts
necessary to a disposition of the appeal.

The victim, Pauline Finn, was acquainted with
defendant as her supplier of illicit drugs. On the evening of May
21, 1997, defendant telephoned Finn and advised that "he had
an amazing amount of cocaine . . . and . . .
[she] should come over." Finn went to defendant’s home
the following morning, was admitted by defendant, and observed a
mirror covered with white powder in the basement area of the
house. As Finn scrutinized the white substance, defendant ordered
that she remove her clothing. Finn initially refused, but
complied after noticing that defendant was armed with a knife.
Defendant subsequently forced Finn to engage in fellatio,
cunnilingus, and sexual intercourse, and attempted anal sodomy.
Finn immediately reported the incident to her "high school
guidance counselor," and defendant was subsequently charged
and convicted for the instant offenses.

I.

Defendant first argues that, during the guilt
phase of his bifurcated trial, the trial court improperly
admitted evidence of prior rape convictions in California.

Although . . . evidence of other
crimes is inadmissible if relevant only to show a probability
of guilt or a propensity for criminal conduct, evidence of
other crimes "is properly received if it is relevant and
probative of an issue on trial, such as an element of the
offense charged or the required predicate for enhanced
punishment."

Berry v. Commonwealth, 22 Va. App. 209,
213, 468 S.E.2d 685, 687 (1996) (quoting Pittman v.
Commonwealth
, 17 Va. App. 33, 35, 434 S.E.2d 694, 695
(1993)). "A prior conviction is used for ‘sentence
enhancement’ when it is admitted . . . during a
trial to convict a defendant of violating a ‘recidivist
statute,’ i.e., a statute that criminalizes the commission
of a successive violation of a particular offense .
. . ." Harris v. Commonwealth, 26 Va. App.
794, 803, 496 S.E.2d 165, 169 (1998) (citations omitted).
"When sentence enhancement is an issue, the Commonwealth has
the burden of proving the existence of defendant’s prior, valid
convictions . . . ." Id.

This Court has previously approved evidence of
prior convictions during the Commonwealth’s case-in-chief in
prosecutions under Code Sect. 18.2-248 (second or subsequent
offense for manufacturing, selling, giving, distributing or
possessing with intent to manufacture, sell, give or distribute a
controlled substance), Code Sect. 18.2-104 (second or
subsequent offense for misdemeanor larceny), and Code
Sect. 18.2-270 (second or subsequent offense for driving
while intoxicated). See Berry, 22 Va. App. at
213-14, 468 S.E.2d at 687 (Code Sect. 18.2-248); Pittman,
17 Va. App. at 35, 434 S.E.2d at 695 (Code Sect. 18.2-104); Farmer
v. Commonwealth
, 10 Va. App. 175, 180-81, 390 S.E.2d 775,
777-78 (1990), aff’d en banc, 12 Va. App. 337, 404
S.E.2d 371 (1991) (Code Sect. 18.2-270).

Code Sect. 18.2-67.5:3 prescribes an
enhanced punishment for subsequent convictions of certain
felonious sexual assault offenses, including rape. Thus, evidence
of a prior conviction was necessary to prove the subject rape as
a subsequent offense, and, therefore, properly admitted during
the guilt phase of trial. To protect defendant from any attendant
prejudice, the court appropriately instructed the jury not to
consider the prior convictions as evidence that defendant
committed the instant offense.

Defendant further argues that the prior rape
convictions were inadmissible because the California statute is
not "substantially similar" to Code Sect. 18.2-61.
See Code Sect. 18.2-67.5:3;
[2] Cox v.
Commonwealth
, 13 Va. App. 328, 329-31, 411 S.E.2d 444, 445-46
(1991). In support of his assertion, he notes that Calf. Code
Sect. 261 criminalizes a range of conduct, including acts
that are not violations of Virginia law.

The record discloses that the prior convictions
in issue resulted from rapes in violation of Calf. Code
Sect. 261(2), which prohibits "an act of sexual
intercourse accomplished with a person not the spouse of the
perpetrator, . . . (2) [w]here it is accomplished
against a person’s will by means of force or fear of
immediate and unlawful bodily injury on the person of
another." Virginia Code Sect. 18.2-61 provides, in
pertinent part, that "[i]f any person has sexual intercourse
with a complaining witness who is not his or her spouse
. . . and such act is accomplished (i) against the
complaining witness’s will, by force, threat or intimidation
of or against the complaining witness or another person,
. . . he or she shall be guilty of rape."

We acknowledge that the Calf. Code
Sect. 261 proscribes acts not embraced by Virginia’s
statute; however, "‘only that prohibition of the other
state’s law under which the person was convicted must
substantially conform [to Code Sect. 18.2-61].’" Honaker
v. Commonwealth
, 19 Va. App. 682, 684, 454 S.E.2d 29, 30
(1995) (quoting Cox, 13 Va. App. at 331, 411 S.E.2d at
446). Clearly, the specific California convictions before the
court resulted from violations of a statute that substantially
conforms to Code Sect. 18.2-61, and, therefore, provided a
proper predicate to the instant conviction for rape as a second
or subsequent offense.

Defendant also argues that the prior rape
convictions were inadmissible because the attendant orders were
not properly authenticated. In support of his contention,
defendant relies upon Carroll v. Commonwealth, which held
an order not properly authenticated because there was no evidence
that the person attesting was "authorized by law to act in
the place of the clerk."
[3] 10 Va. App. 686, 691, 396 S.E.2d 137, 139 (1990).

Here, defendant’s prior convictions
carried a stamp: "Allen Slater, Executive Officer and Clerk
of the Superior Court of the State of California, in and for the
County of Orange." The order was impressed with the Orange
County Superior Court seal, and the signature of Flora L. Perez
appears in a space designated "Deputy." Thus,
"‘it plainly can be gathered from the . . .
attestation . . . that [Ms. Perez] is the deputy clerk
of [Orange] county, authorized by law to act in place of [her] principal,’" properly authenticating the document. Id.
at 690, 396 S.E.2d at 139-40 (quoting Hurley v. Charles,
112 Va. 706, 710, 72 S.E. 689, 690-91 (1911)).

II.

Defendant next complains that the trial court
erred in refusing to accept his offer to stipulate to the prior
convictions, if convicted, during the sentencing phase of
trial. However, it is well settled that the Commonwealth "is
not obliged to enter into an agreement whereby it is precluded
from putting on its evidence simply because the defendant is
willing to make a qualified stipulation." Glover v.
Commonwealth
, 3 Va. App. 152, 162, 348 S.E.2d 434, 441
(1986), aff’d, 236 Va. 1, 372 S.E.2d 134 (1988); see
Spencer v. Commonwealth, 240 Va. 78, 91, 393 S.E.2d 609,
617 ("A defendant in a criminal case may not preclude the
Commonwealth from introducing otherwise admissible evidence by
offering to stipulate the facts which the evidence would
show."), cert. denied, 498 U.S. 908 (1990).

III.

Defendant argues that the trial court erred in
refusing to set aside the verdict because the indictment failed
"to set forth a crime" in Virginia. However, defendant
first raised this issue after the jury had rendered the verdict.
Defendant was clearly apprised of the cause and nature of the
offense, raised a vigorous defense at trial, and fully addressed
the relevant issues. However, defendant failed to challenge the
form or validity of the indictment, or any attendant defect or
omission, prior to verdict. He, therefore, "waived his right
to be more fully advised of ‘the cause and nature of his
accusation,’" and the trial court did not err in
denying the motion. McDougal v. Commonwealth, 212 Va. 547,
549, 186 S.E.2d 18, 20 (1972) (citation omitted).

IV.

Defendant next assigns error to the trial
court’s refusal to strike jurors Bennett and Lundquist for
cause.

"The right to a trial by an impartial jury
is guaranteed . . . ." Gosling v.
Commonwealth
, 7 Va. App. 642, 645, 376 S.E.2d 541, 543 (1989)
(citations omitted). "Through voir dire and other competent
evidence, the trial court must examine the venirepersons for
signs of a mind set that would prevent or substantially impair
the performance of the duties of a juror in accordance with his
instructions and his oath." Swanson v. Commonwealth,
18 Va. App. 182, 185, 442 S.E.2d 702, 704 (1994) (citation and
internal quotations omitted).

"The partiality or impartiality of an
individual juror is a factual issue best determined by the trial
court." Watkins v. Commonwealth, 229 Va. 469, 480,
331 S.E.2d 422, 431 (1985) (citation omitted), cert. denied,
475 U.S. 1099 (1986). "Because the trial judge has the
opportunity . . . to observe and evaluate the apparent
sincerity, conscientiousness, intelligence, and demeanor of
prospective jurors first hand, the trial court’s exercise of
judicial discretion in deciding challenges for cause will not be
disturbed on appeal," absent manifest error. Pope v.
Commonwealth
, 234 Va. 114, 123-24, 360 S.E.2d 352, 358 (1987)
(citation omitted), cert. denied, 485 U.S. 1015
(1988). Thus, "we must consider the ‘voir dire as a
whole, . . .’ according the appropriate
‘deference to the trial court’s decision.’" Swanson,
18 Va. App. at 186, 442 S.E.2d at 704 (citations omitted).

During voir dire, defense counsel inquired of
the venire "whether any of you, or your close friends, or
relatives, have been the victim of a crime." After Ms.
Bennett responded that her husband had been murdered, counsel
proffered that the suspect in the murder was represented by the
Public Defender’s Office, also counsel for defendant, and
moved to strike her for cause.

However, in response to further inquiry by the
Commonwealth, Ms. Bennett assured that she could set aside issues
relating to the murder when hearing the evidence in the instant
prosecution, would not be influenced by the role of the Public
Defender, and could be fair and impartial, guided by the evidence
and instructions. Noting that Ms. Bennett "was very adamant
that she could be objective in this case," the court denied
defendant’s motion to strike her for cause, a decision
supported by the record.

Mr. Lundquist, also challenged by defendant,
responded affirmatively on voir dire when defendant asked,
"Do you think that if you heard testimony from a Police
Officer that you think he would be more credible, or more
believable, simply because he is a Police Officer?" During
further questioning, counsel read a jury instruction to Mr.
Lundquist, which addressed the jury’s role in assessing
"the facts, the credibility of the witnesses, and the weight
of the evidence," and Mr. Lundquist responded, "See,
all that gobble-de-gook; the Police Officer would have higher
credibility, I suppose, based on his title and role,"
prompting counsel’s motion to strike Mr. Lundquist for
cause. However, when examined by the court to clarify his
responses, Mr. Lundquist explained that his comments simply
recognized a police officer as a "trained observer,"
without attributing greater "credibility" to such
testimony.

The trial court denied defendant’s motion
to strike Mr. Lundquist, commenting that,

I think once we got the semantics
straightened out about what we were talking about, I think he
was talking about what Police Officers are trained observers,
and he flat out said that he could put Police Officers and
lay witnesses on an even footing in terms of credibility, and
even thought that Police Officers could be untruthful.

We recognize that, "[a]lthough jurors have
a right and a duty to determine the credibility of witnesses in a
particular case, giving unqualified credence to the testimony of
a law enforcement officer based solely on the officer’s
official status constitutes impermissible bias." Gosling,
7 Va. App. at 645, 376 S.E.2d at 544 (citing Mullis v.
Commonwealth
, 3 Va. App. 564, 571, 351 S.E.2d 919, 923
(1987)). Here, however, the record, viewed in its entirety,
clearly establishes that Mr. Lundquist was a conscientious and
attentive juror, fully aware of his attendant duties and
responsibilities and not predisposed to give unqualified credence
to the testimony of a law enforcement officer. Upon
clarification, it became apparent that Mr. Lundquist confused
credibility and truthfulness with the weight to be accorded
testimony. His responses confirmed that he would properly
consider the testimony of police officers and lay witnesses
"on an even footing." Thus, the trial court did not
abuse its discretion in denying the motion.

V.

Defendant argues that the mandatory life
sentence imposed by Code Sect. 18.2-67.5:3 is
unconstitutional.

"In assessing the constitutionality of a
statute or ordinance, courts must presume that the legislative
action is valid. Consequently, the burden is on the challenger to
demonstrate the constitutional defect." Coleman v.
Commonwealth
, 5 Va. App. 459, 462, 364 S.E.2d 239, 241
(citation omitted), reh’g denied, 6 Va. App. 296, 368
S.E.2d 298 (1988). The Commonwealth "is allowed discretion
in formulating its own legislative policies regarding the
appropriate punishment for offenses." Wolkind v. Selph,
473 F. Supp. 675, 679 (E.D. Va. 1979), aff’d, 649
F.2d 865 (4th Cir. 1981); see Rummel v. Estelle,
445 U.S. 263, 274 (1980) (acknowledging reluctance to review
legislatively mandated terms of imprisonment). "[O]nly where
the sentence petitioner has been required to serve is so grossly
disproportionate to the offense committed as to shock the
conscience of the Court will it be struck down as
unconstitutional." Wolkind, 473 F. Supp. at 679; see
Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)
(concurring opinion of Kennedy, J.) (Eighth Amendment
"forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime").

The offenses specified in Code
Sect. 18.2-67.5:3 involve second or subsequent offenses of
violent sexual assault, including rape. We cannot conclude that
the mandatory life sentence imposed by Code
Sect. 18.2-67.5:3 for a second or subsequent commission of
such vile crimes is "grossly disproportionate" to the
offense. See Harmelin, 501 U.S. at 994 (concluding
that a mandatory life sentence is not unconstitutionally
disproportionate to a first-time felony drug offense).

VI.

Defendant also argues that the trial court
erroneously admitted evidence of a taped conversation between
defendant and Finn, the victim, after ruling it inadmissible
during a pretrial motion in limine. The
Commonwealth counters that defendant "opened the door"
to the taped conversation by reference to it on cross-examination
of the victim.

"The admissibility of evidence is within
the broad discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of
discretion." Blain v. Commonwealth, 7 Va. App. 10,
16, 371 S.E.2d 838, 842 (1988) (citation omitted).
"‘Cross-examination on a part of a transaction enables
the opposing party to elicit evidence on redirect examination of
the whole transaction at least to the extent that it relates to
the same subject.’" Briley v. Commonwealth, 221
Va. 532, 540, 273 S.E.2d 48, 53 (1980) (citation omitted), cert.
denied, 451 U.S. 1031 (1981); see Lockhart v.
Commonwealth
, 251 Va. 184, 184, 466 S.E.2d 740, 740 (1996).

Defense counsel asked Finn several questions
pertaining to her statements during the taped conversation,
without explaining the circumstances. Defendant’s inquiries
included:

So, you weren’t angry when you said,
"Well, then you must be pretty f— up, that must be
some good God damn good baking soda. Let’s see does it
dissolve in any way shape or form? Tastes like absolutely
nothing at all. It was chalk dust." You weren’t mad
when you said that?

Finn answered, "Of course I had to pretend
like I was mad because I couldn’t let him know that the cops
were listening on the phone." Clearly, defendant pursued
such evidence to discredit the victim, a circumstance that
permitted the Commonwealth to rebut with introduction of the tape
itself.

Defendant’s complaint that the evidence
upset his defense "strategy," developed in reliance
upon the court’s prior ruling to exclude the tape, is
without merit. In answer to this argument below, the trial court
offered defendant the opportunity to recall the victim and
undertake further examination of the witness, thereby remediating
any prejudice to defendant’s strategy. Moreover, the tape
was relevant and material because defendant admitted certain acts
subject to the instant prosecution.

Under such circumstances, the court correctly
admitted the tape into evidence.

VII.

Finally, defendant argues that the evidence was
insufficient to convict him of sodomy by cunnilingus, a violation
of Code Sect. 18.2-67.1. When the sufficiency of the
evidence is challenged on appeal, we must review the evidence in
the light most favorable to the Commonwealth, disturbing a
jury’s verdict only if plainly wrong or without evidence to
support it. See Code Sect. 8.01-680; Martin v.
Commonwealth
, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).

"‘Penetration is an essential element
of the crime of sodomy[;]’ [h]owever, . . . the
penetration ‘need only be slight.’" Horton v.
Commonwealth
, 255 Va. 606, 612, 499 S.E.2d 258, 261 (1998)
(citations omitted). "‘[P]enetration of any portion of
the vulva, which encompasses the "external parts of the
female sex organs considered as a whole" and includes,
beginning with the outermost parts, the labia majora, labia
minora, hymen, vaginal opening and vagina is sufficient’ to
establish the element of penetration." Moore v.
Commonwealth
, 254 Va. 184, 190, 491 S.E.2d 739, 742 (1997)
(quoting Love v. Commonwealth, 18 Va. App. 84, 88, 441
S.E.2d 709, 712 (1994)). "‘Penetration of the vaginal
opening . . . clearly [is] not required.’" Jett
v. Commonwealth
, 29 Va. App. 190, 195, 510 S.E.2d 747, 749
(1999) (en banc) (citation omitted) (alterations in
original).

Evidence that defendant licked the
victim’s vagina is sufficient to establish penetration of
the vulva or outermost portion of the genitalia, an act of sodomy
by cunnilingus in violation of Code Sect. 18.2-67.1. See
Horton, 255 Va. at 613-14, 499 S.E.2d at 261-62; Ryan
v. Commonwealth
, 219 Va. 439, 441, 444, 247 S.E.2d 698, 700,
702 (1978). Finn testified that defendant "started on [her,] . . . [when] [h]e put his mouth on [her] vagina, [h]e
was licking around and touching." Thus, her testimony was
sufficient to support defendant’s conviction for sodomy by
cunnilingus.

Accordingly, we affirm the convictions.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

[2] Code Sect. 18.2-67.5:3(C) provides that,
"[f]or purposes of this section, prior convictions shall
include (i) adult convictions for felonies under the laws of any
state or the United States that are substantially similar to
those listed in subsection B."

[3] In Carroll,
the order contained the following:

A COPY TESTE:

WALTON F. MITCHELL, JR., CLERK

CRAIG COUNTY CIRCUIT COURT

BY /s/ Peggy B. Elmore

10 Va. App. at 688, 396 S.E.2d at 138.

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