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HUSSEN v. COMMONWEALTH OF VA


HUSSEN

v.

COMMONWEALTH OF VA


January 8, 1999
Record No. 980940

LEBAN A. HUSSEN

v.

COMMONWEALTH OF VIRGINIA

Present: Carrico, C.J., Compton, Lacy, Hassell,
Keenan, and Kinser, JJ., and Poff, Senior Justice

FROM THE COURT OF APPEALS OF VIRGINIA
OPINION BY JUSTICE LEROY R. HASSELL, SR.


In this appeal, we consider whether an expert
witness’ testimony improperly invaded the province of the jury.

Leban A. Hussen was convicted by a jury in the
Circuit Court of Fairfax County of the rape and forcible sodomy
of Donyala G. Hucaby and sentenced to serve 15 years in the
penitentiary. The circuit court confirmed the verdicts, and the
Court of Appeals denied the defendant’s petition for appeal. The
defendant filed a habeas corpus petition and asserted that his
trial counsel failed to seek an appeal from the judgment of the
Court of Appeals. The Commonwealth agreed, and we held that the
defendant was entitled to pursue a delayed appeal to this Court.
We awarded the defendant an appeal.

We will summarize the relevant facts and
inferences deducible therefrom in the light most favorable to the
Commonwealth, the prevailing party below. See Davidson
v. Commonwealth, 244 Va. 129, 132, 419 S.E.2d 656, 658
(1992). The defendant met Hucaby during a party at Howard
University in September 1993. The defendant, who was a stranger
to Hucaby, approached her at the party while she was conversing
with friends. The defendant told Hucaby that he was a member of
an entertainment group and inquired whether she was interested in
working for the group. The defendant asked Hucaby her name,
address, and telephone number, which she provided to him. The
defendant told Hucaby that he "found [her] attractive"
and asked if they could "go out to dinner sometime."

The next evening, the defendant made a
telephone call to Hucaby, who was not in her dormitory at the
time of the call. The defendant left a message on her answering
machine. The defendant called Hucaby later that night, around
12:15 a.m., and asked if he could see her. She decided to go out
with him because she thought they might have a late dinner.

The defendant arrived at Hucaby’s dormitory
room and informed her that his roommate had given him a ride
there. He asked if they could go to his house. In response to
Hucaby’s question, "why are we going to your house?",
the defendant replied that his sister had prepared a meal and he
wanted to "get to know [Hucaby] better." Hucaby told
the defendant that she did not intend to "do anything [of a
sexual nature], if that was his intention" and further
stated, "I’m practicing abstinence."

The defendant’s roommate drove the defendant
and Hucaby to the defendant’s house in Fairfax. They arrived at
the house about 2:00 a.m. Hucaby told the defendant that she
needed to return to her dormitory no later than 4:00 a.m.

Upon arrival at the defendant’s house, Hucaby
used a telephone to call her roommate to let her know that Hucaby
had arrived safely. After she finished speaking to her roommate,
Hucaby talked to the defendant in the kitchen for a while. There,
he made an effort to kiss her, but she rejected his advances.

The defendant suggested that Hucaby accompany
him to his bedroom because he did not have any furniture in other
rooms in the house. She went to his bedroom which contained a
mattress on the floor adjacent to a wall, a box spring adjacent
to another wall, and a lamp. The defendant closed the bedroom
door, and Hucaby sat on the mattress. They conversed for a while
and, during the conversation, the defendant repeatedly asked
Hucaby for a kiss. Eventually, they kissed for about "four
seconds," and they began to talk some more.

During this conversation, Hucaby informed the
defendant that she was a virgin. Subsequently, Hucaby looked at
her watch and realized that the time was about 3:40 a.m., and she
told the defendant she needed to return to her dormitory. The
defendant, who had previously promised Hucaby that his roommate
would drive her home, responded that his roommate had gone, but
that he would be back. The defendant’s roommate, however, never
returned.

Hucaby, who felt "stranded" at the
defendant’s house, told him that she was very sleepy and she
needed to go home. The defendant responded that she could go to
sleep at his home until someone was able to take her back to her
dormitory.

Hucaby, who was fully clothed, got into the
defendant’s bed. She told him that she was going to go to sleep.
After about 10 seconds, the defendant told her that he wanted to
be affectionate. She tried to move away from him, and she told
him that she did not "want to be affectionate." He
grabbed her arm and told her "not to be foul." She
tried to push him away. He tried to kiss her as she tried to push
him away. He put his hand around her throat and said, "[y]ou
came into this house under your own free will, and I can make it
seem as though you were never here. And no one will say you were
here." He also told her that "I have something under
the bed."

The defendant told Hucaby to remove her
clothes. When she refused, he removed her clothes and raped her.
After he raped her, he forced her to perform an act of oral
sodomy upon him. Then, he raped her again. After he raped Hucaby,
the defendant went to sleep. Hucaby went to sleep, and when she
awakened, it was still dark outside. She called her roommate and
obtained directions to the nearest location of the public
transportation system. She went to the public transportation
system and rode a subway to her dormitory.

Hucaby did not inform anyone that she had been
raped and sodomized until three days later, when she went to the
Howard University Medical Center. She was examined by Dr. Jean
Williams, who determined that Hucaby had sustained a laceration
approximately one-half centimeter just below her vaginal
introitus, which is the area just below the vaginal opening.

During the trial, Suzanne L. Brown, a sexual
assault nurse examiner at Fairfax Hospital, qualified as an
expert witness. She was permitted, over the defendant’s
objection, to give the following testimony which is at issue in
this appeal:

"Q Now that you’ve been qualified as
an expert. You have received medical information concerning
Donyala Hucaby, correct?

"A Correct.

"Q With that information can you form
a professional opinion based upon a reasonable degree of
medical certainty as what would be consistent with an injury
such as that?

"A Yes, I can.

 . . . .

"Q Knowing what you know about the
injury and knowing — let’s talk now about the female
response, normal female response. Is there a term for that?

"A Yes, the human sexual response.

 . . . .

"Q And tell the ladies and gentlemen
of the jury please what it is, this human sexual response.

"A The human sexual response is a
[sic] involuntary what happens during or just prior to sexual
intercourse and a lot of it has to do with — the first
phase is when the person is sexually excited causing
lubricant to form in the vaginal area.

"The second part of that causes some
actual structural changes to the entire vaginal area. One of
the changes that occurs is that the labia majora which are
the outer lips of the vaginal opening actually thin out and
flatten against the wall of the vagina. After —

"Q Where was this injury with respect
to where you’re speaking of now?

"A Just below the vaginal opening.

 . . . .

"Q Okay. After the outer labia majora
flattens out then the smaller lips, the labia minora, will
engorge and actually move away from the vaginal opening to
allow for a penis to enter the vagina. The vagina will also
elongate causing a little bit of a shelving area to guide the
penis into the vagina.

"Q Now, with what you know about the
human sexual response and with what you know about the
injuries that Donyala Hucaby received can you give — let
me add something to that hypothetical.

"Suppose for these questions that
Donyala Hucaby was a virgin and that she had had sexual
intercourse several days prior to being examined. Can you
give an opinion as to whether or not these injuries were
consistent with a first time intercourse?

"MR. DEVINE: Your Honor, for the
reasons I stated earlier I will object to that question.

"THE COURT:
 . . . . Overruled.

"Proceed.

"Q Please tell the ladies and
gentlemen of the jury whether these injuries were consistent
with a woman having sex for the first time.

"A They are not consistent with a
virgin having sex for the first time.

"Q Are these injuries —

"A JUROR: I didn’t hear.

"Q Could you please repeat that?

"A I said that the injuries, when a
virgin has sex for the first time this is not a typical area
for an injury to be.

"Q And we’re speaking of consensual?

"A Correct."

The defendant, relying principally upon Bond
v. Commonwealth, 226 Va. 534, 311 S.E.2d 769 (1984), and Llamera
v. Commonwealth, 243 Va. 262, 414 S.E.2d 597 (1992),
argues that the trial court erred in allowing Brown to testify
that the complaining witness’ injury was not consistent with
consensual sex because consent was an ultimate issue of fact at
trial, and Brown’s testimony impermissibly invaded the province
of the jury. We disagree with the defendant.

We have held consistently that the admission of
expert testimony upon an ultimate issue of fact is impermissible
because it invades the function of the fact finder. Jenkins
v. Commonwealth, 254 Va. 333, 336, 492 S.E.2d 131, 132
(1997); Llamera, 243 Va. at 264, 414 S.E.2d at 598; Bond,
226 Va. at 538, 311 S.E.2d at 771-72; Cartera v. Commonwealth,
219 Va. 516, 519, 248 S.E.2d 784, 786 (1978); Webb v. Commonwealth,
204 Va. 24, 33, 129 S.E.2d 22, 29 (1963); Ramsey v. Commonwealth,
200 Va. 245, 250, 105 S.E.2d 155, 158 (1958).

In Bond, we considered whether the
circuit court misapplied this rule by permitting an expert
witness to testify about the cause of the victim’s death. The
defendant had been charged with murder, and one of the issues
that the Commonwealth was required to prove was whether the
victim’s death "was brought about by the criminal agency of
another," which was an ultimate issue of fact. 226 Va. at
537, 311 S.E.2d at 771. The expert witness testified, over the
defendant’s objection, that he had "made a determination
that [the victim's] death was as a result of a homicide." Id.
We held that the expert witness’ testimony invaded the province
of the jury because the ultimate factual issue to be decided by
the jury was whether the victim jumped intentionally to her
death, fell accidentally to her death, or was thrown to her
death. Id. at 539, 311 S.E.2d at 772.

In Llamera, we also considered whether a
circuit court improperly permitted an expert witness to express
an opinion upon an ultimate fact in issue. There, a police
detective, who had qualified as an expert witness on the subject
of the sale, distribution, marketing, packaging, and effects of
narcotics, opined that cocaine, which had been seized in the
defendant’s store, "was packaged that way for
distribution." The detective testified, over the defendant’s
objection, that the quantity of cocaine found "would suggest
that the owner of the cocaine was a person who sold cocaine"
and that such quantity was inconsistent with personal use. Llamera,
243 Va. at 264, 414 S.E.2d at 598. We held that the Commonwealth
was required to prove that the defendant possessed the cocaine
and that the defendant did so with the intent to distribute and
that these elements were ultimate issues of fact to be resolved
by the jury. Id. at 265, 414 S.E.2d at 599. We concluded
that the challenged testimony was inadmissible because the
detective expressed an opinion upon an ultimate issue of fact
when he testified that the owner of the cocaine was a person who
sold cocaine. Id.

The present appeal, however, is clearly
distinguishable from, and is not controlled by, our decisions in Llamera
and Bond. It is true, as the defendant here asserts, that
the Commonwealth was required to prove, among other things, that
he forced the victim to engage in sexual intercourse against her
will. However, Brown’s testimony was not an opinion that the
sexual intercourse between the defendant and the victim was
against her will. Rather, Brown’s testimony, which must be viewed
as a whole, reflects her opinion that the unique nature of the
victim’s laceration, particularly the location of the injury, was
not consistent with consensual, first time intercourse.
Such an opinion by this expert witness is not a comment on one of
the ultimate issues of fact to be determined by the jury, that
is, whether the defendant’s conduct was against the victim’s
will. See Davis v. Commonwealth, 12 Va. App.
728, 731-32, 406 S.E.2d 922, 923-24 (1991) (detective’s testimony
that a certain quantity of drugs was not consistent with personal
use did not constitute an opinion that the defendant intended to
distribute marijuana and, thus, did not invade the province of
the jury).

Accordingly, we will affirm the judgment of the
Court of Appeals.

Affirmed.

 


Dissenting Opinion


SENIOR JUSTICE POFF, with whom JUSTICE LACY and
JUSTICE KEENAN join, dissenting.

The issue before this Court turns upon the
testimony of a registered nurse employed by a hospital as a
"Sexual Assault Nurse Examiner". The nurse qualified in
the trial court as an expert in the examination of victims of
sexual assault. Asked to explain the term "human sexual
response", the witness testified that "the first phase
is when the person is sexually excited causing lubricant to form
in the vaginal area" and that the "second part of that
causes some actual structural changes" that enlarge access
through "the vaginal opening". Basing her testimony on
a doctor’s report of his examination, the nurse said that Hucaby
had sustained a "half a centimeter laceration just below
. . . the vaginal opening."

Responding to questions posed by the
prosecutor, the nurse then testified as follows:

Question: Please tell the ladies and
gentlemen of the jury whether these injuries were consistent
with a woman having sex for the first time.

Answer: They are not consistent with a
virgin having sex for the first time.

. . .

Question: Could you please repeat that?

Answer: I said that the injuries, when a
virgin has sex for the first time this is not a typical area
for an injury to be.

Question: And we’re speaking of consensual?

Answer: Correct.

The trial judge overruled Hussen’s objection to
that testimony.

The nurse’s statement that the situs of
Hucaby’s injury was "not a typical area for an injury to
be" and her acknowledgement that she was "speaking of
consensual" was an expression of her expert opinion that the
injury was the result of a sexual assault. The import of that
language was reinforced by the nurse’s further testimony when she
agreed that "when the human sexual response is triggered
. . . injuries do not occur." Clearly, a lay juror
would conclude that such testimony reflects the opinion of a
witness, a witness qualified by the trial judge as an expert,
that Hucaby’s injury was one suffered by a person whose sexual
response had not been triggered, i.e., that the sexual
conduct was not consensual.

"We consistently have held that the
admission of expert opinion upon an ultimate issue of fact is
impermissible because it invades the function of the fact
finder." Llamera v. Commonwealth, 243 Va. 262, 264,
414 S.E.2d 597, 598 (1992) (holding inadmissible expert’s opinion
that quantity of cocaine seized was inconsistent with personal
use and consistent with intent to distribute). Such an invasion
of the function of the fact finder "implicates the due
process and fair trial guarantees of the Constitution of the
United States." Jenkins v. Commonwealth, 254 Va. 333,
336, 492 S.E.2d 131, 132 (1997) (error in admission of expert
opinion that child had been sexually abused was not harmless). As
we said in Cartera v. Commonwealth, 219 Va. 516, 519, 248
S.E.2d 784, 786 (1978), "it was improper to permit the
doctor to express his opinion that the girls had been raped.
Whether rape had occurred was the precise and ultimate issue in
the case." See also Bond v. Commonwealth,
226 Va. 534, 537, 311 S.E.2d 769, 771 (1984) (murder conviction
reversed because expert "ruled out" possibility of
suicide and accident and classified victim’s death as
"result of a homicide").

Notwithstanding our decisions in these cases,
the Commonwealth contends that "the Court of Appeals has
held it proper for an expert to opine that a quantity of drugs in
a defendant’s possession was not consistent with personal
use." The Commonwealth relies upon Davis v. Commonwealth,
12 Va. App. 728, 406 S.E.2d 922 (1991). But Davis did not
hold that such testimony is "proper" if it constitutes
an expert opinion on an ultimate fact in issue. Rather, the court
held that the testimony was admissible only because it had not
"violated this long-established rule." Id.
at 731, 406 S.E.2d at 924. Specifically, the court said that
"we find that [the expert's] testimony . . . did
not constitute an opinion that Davis had an intent to distribute
the marijuana found in his house."
[1] Id.
at 732, 406 S.E.2d at 924.

Citing ten other decisions of the Court of
Appeals in criminal drug cases,
[2] the
Commonwealth also argues that "as a matter of practice such
[expert] testimony is routinely received." But the admissibility
of expert opinion was not in issue in those cases. In each, the
issue was sufficiency of the evidence; expert testimony was
discussed only as an adjunct to the circumstantial evidence
underlying the conviction.

Here, as in Cartera, "(w)hether
rape had occurred was the precise and ultimate issue in the
case." 219 Va. at 519, 248 S.E.2d at 786. The nurse’s
testimony on that question was an opinion of an expert. That
opinion was patently prejudicious. I would hold that the trial
judge erred in admitting that evidence, annul the conviction,
reverse the judgment of the Court of Appeals denying Hussen’s
petition for appeal, and remand the case to the Court of Appeals
with direction to remand the case to the trial court for further
proceedings.

 

 

 

FOOTNOTES:

[1] The marijuana was found in the
basement of Davis’ house, and he was one of three occupants of
the dwelling. Davis’ cousin, one of the occupants, testified that
he had purchased the marijuana and hidden it in the basement. The
Court of Appeals noted that "[a] given quantity of a
controlled substance can be possessed jointly by several
individuals. . . . In such a case, that amount
might be inconsistent with an individual’s personal use, and yet
not establish an intent to distribute." Id. at 732,
406 S.E.2d at 924. The Court concluded that the detective’s
testimony, considered in context with the facts and the jury
instructions, was appropriate for the jury’s consideration
because it was not the ultimate issue in the case.

[2] Welshman v. Commonwealth, 28
Va. App. 20, 37, 502 S.E.2d 122, 130 (1998); Lovelace v.
Commonwealth
, 27 Va. App. 575, 587, 500 S.E.2d 267, 273
(1998); Spivey v. Commonwealth, 23 Va. App. 715, 479
S.E.2d 543 (1997); Jones v. Commonwealth, 23 Va. App. 93,
474 S.E.2d 825 (1996); Williams v. Commonwealth, 21 Va.
App. 263, 463 S.E.2d 679 (1995); Wilkins v. Commonwealth,
18 Va. App. 293, 443 S.E.2d 440 (1994); Hardy v. Commonwealth,
17 Va. App. 677, 440 S.E.2d 434 (1994); Poindexter v.
Commonwealth
, 16 Va. App. 730, 432 S.E.2d 527 (1993); Early
v. Commonwealth
, 10 Va.

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