TERRY v. COMMONWEALTH OF VIRGINIA

TERRY v. COMMONWEALTH OF
VIRGINIA

May 6, 1997
Record No. 2608-95-2

TYRONE TERRY

v.

COMMONWEALTH OF VIRGINIA

Donald W. Lemons, Judge
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia

OPINION BY JUDGE SAM W. COLEMAN III
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on briefs), for appellant.

Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney General, on brief), for
appellee.

The defendant, Tyrone Terry, was convicted in a
jury trial for raping a minor child in violation of Code

?18.2-61. On appeal, he contends that the
victim’s complaint of rape to her mother, made ten months after
the alleged rape, was not sufficiently recent and reliable to
have been admissible into evidence under Code ?19.2-268.2.

Finding no error, we affirm the defendant’s
conviction.

BACKGROUND

On appeal, we review the evidence
and all reasonable inferences fairly deducible therefrom in the
light most favorable to the Commonwealth. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The evidence proved that at the time of the offense the victim
(N.F.) was twelve years old. One evening during April 1994,
N.F.’s mother, a private duty nurse, had to stay overnight at a
patient’s home. The mother asked the defendant, a close friend,
to house-sit for her. The defendant and N.F. were alone in the
house that evening. Around 3:00 a.m., the defendant entered
N.F.’s bedroom and raped her.

A few months after the rape, N.F.
told her friend "Huck" that the defendant had raped
her. She did so after "Huck" told her about his niece
having been raped. He encouraged N.F. to tell her mother, but she
feared her mother would not believe her. N.F. testified that she
also felt partially responsible for the rape because she had
asked her mother if she could stay home that night. N.F. further
testified that she did not tell her father because she feared he
would become angry, injure the defendant, and end up in jail.
Sometime after N.F. told "Huck" about the rape, she
told her friend, Latisha. While discussing the rape with these
two friends, "Huck" threatened to tell N.F.’s mother if
she did not. N.F. telephoned her mother, met her at home, and
told her about the rape. The mother immediately called the
police.

Over defense counsel’s objection,
the mother testified that N.F. called her on February 10, 1995,
and said she wanted to talk. N.F. then reported that the
defendant had raped her in April 1994. The trial judge ruled that
the ten month delay in reporting the rape had been sufficiently
explained and ruled the evidence admissible. The trial judge then
instructed the jury:

The evidence of a recent
complaint of sexual assault such as this is admissible and
you may consider it, but only for the purpose of
corroborating the other evidence in the case . . . . It is
not independent evidence of the act itself. It is only
corroborative in nature and that is the only basis upon which
you can receive it. The question of its timeliness and how
much time took place to make the report, is a matter for you
to consider as you weigh the evidence and the credibility of
the evidence.

ANALYSIS

The "recent complaint"
exception to the hearsay rule is derived from the early English
common law rule requiring the victim of a violent crime to raise
a "hue and cry" in the neighborhood so the neighbors
would come to the victim’s aid, engage in a search for the
attacker, and dispel the inference that the victim may have lied
about having been attacked. See Allan R. Pearlman, Case
Note, Fresh-Complaint Rule, 23 Rutgers L.J. 189, 193
(1991). Under the "hue and cry" rule, which is now
discredited, a prosecutrix in a rape case was required to prove a
timely complaint of rape in order to prove that a rape had
occurred. See Woodard v. Commonwealth, 19 Va. App.
24, 27, 448 S.E.2d 328, 330 (1994); Michael H. Graham, The Cry
of Rape: The Prompt Complaint Doctrine and the Federal Rules of
Evidence, 19 Willamette L. Rev. 489, 491 (1983).

Since the decline of the "hue
and cry" rule, three theories have emerged under which
evidence of a recent complaint of rape may be admissible. First,
the complaint may be admitted to corroborate the complaining
witness’ testimony and to rebut the inference of recent
fabrication that is raised by a victim’s silence. See 4
Wigmore, Evidence ?1135(A), at 298-99 (Chadbourne rev.
1972); Graham, supra, at 492-94. Under this approach, the
evidence is corroborative; thus, the substance or details of the
complaint are not admissible and the complaining witness is
required to testify before the complaint is admissible. See
Wigmore, supra, ?1136, at 307; Graham, supra, at
493. The second theory admits evidence of a recent complaint as a
prior consistent statement of the complainant to rebut a charge
of recent fabrication, improper influence or motive. See
Wigmore, supra, ?1137, at 311; Graham, supra, at
494-95. Under this approach, the complainant must testify;
however, the details of the complaint are admissible as long as
the testimony is "rebutting in nature." Wigmore, supra,
?138, at 311; Graham, supra, at 494. The third theory
admits evidence of a recent complaint under the "excited
utterance" or under the res gestae exception
to the hearsay rule. The details of the statement are admissible
and the complainant need not testify, but the complaint must have
been made immediately after or contemporaneous with the event,
meeting the requirements for an excited utterance. Wigmore, supra,
?39, at 313-14; Graham, supra, at 495-500.

Virginia has traditionally
followed the first theory, admitting evidence of recent
complaints of rape as corroborative evidence. See Fisher
v. Commonwealth, 228 Va. 296, 300, 321 S.E.2d 202, 204
(1984); Cartera v. Commonwealth, 219 Va. 516, 518, 248
S.E.2d 784, 786 (1978) ("Only the fact that the complaint
was made . . . is admissible; neither the details of the alleged
offense nor a description of the alleged assailant, as reported
by the victim, may be admitted."); Herron v. Commonwealth,
208 Va. 326, 330, 157 S.E.2d 195, 198 (1967). Thus, under
Virginia’s common law "recent complaint" rule, evidence
of a prompt complaint of rape is admissible to corroborate the
complaining witness’ testimony regarding the occurrence of the
rape. See McManus v. Commonwealth, 16 Va. App. 310,
312, 429 S.E.2d 475, 476 (1993).

Code ?19.268.2,enacted in 1993,
embodies the common law rule and states in pertinent part,
"in any prosecution for criminal sexual assault . . . the
fact that the person injured made complaint of the offense
recently after commission of the offense is admissible, not as
independent evidence of the offense, but for the purpose of
corroborating the testimony of the complaining witness." The
statute codifies Virginia’s common law "recent
complaint" hearsay exception, see Report of The
Commission on The Reduction of Sexual Assault Victimization in
Virginia, Sen. Doc. No. 31, at 3 (1993), and extends the
common law rule to crimes for which the rule did not previously
apply, such as sodomy, aggravated sexual battery, fornication,
and indecent liberties with children. See 2 Charles E.
Friend, The Law of Evidence in Virginia ?18-29(4th ed.
1993); see also Pepoon v. Commonwealth, 192 Va.
804, 811, 66 S.E.2d 854, 858 (1951) (holding that the
"recent complaint" rule applies only to rape cases, not
sodomy cases).

The dispositive question in this
case is how recent or timely must a complaint of rape be in order
to be admissible. Originally, Virginia courts required the
complaint to be almost immediate in order to be admissible.

Such a victim must at once
make complaint, or she will be suspected of consent. The
instincts of human nature, revolting at the unnatural and
heinous crime, compels [sic] the victim to cry out and
denounce its foul perpetrator; and such complaint, made under
the smart and indignation of such a cruel injury, has been
received by the courts as evidence. But even in such cases
the evidence is confined to the new complaint, and no
detailed statement of the transaction is permitted to go in
evidence.

Haynes v. Commonwealth, 69
Va. (28 Gratt.) 942, 947 (1877). In a 1951 sodomy case, the
Virginia Supreme Court said that,

[e]ven if the rule admitting
evidence of a recent complaint in rape cases were extended to
all sex offenses, including sodomy . . . it must first be
established that the testimony which is sought to be
introduced as a complaint was in fact a recent complaint and
conforms to the rules of evidence controlling the admission
of such testimony.

Pepoon, 192 Va. at 811, 66
S.E.2d at 858. In Herron v. Commonwealth, the prosecutrix
reported the rape two days after it occurred. 208 Va. at 330, 157
S.E.2d at 198. The Supreme Court reiterated that a
"complaint should be made soon after the offense
occurred"; however, on the facts of the case, the court held
that the prosecutrix’s delay of two days went to the weight to be
given to the complaint, not its admissibility. Id.

In relaxing the requirement that a
complaint of rape must be immediate in order to be admissible,
the Supreme Court has recognized that good reason may exist for a
victim to delay reporting a rape. In Willis & Bell v.
Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 813 (1977),
the Court stated that "[t]he failure to report an alleged
rape by force and violence for an unreasonable period after the
incident occurred casts suspicion and doubt on the truthfulness
of the story of a prosecutrix unless there is a credible
explanation given for such delay." See also Broaddus
v. Commonwealth, 126 Va. 733, 748, 101 S.E. 321, 325-26
(1919) (holding that because the victim offered an explanation
for delay which was not inherently incredible, the complaint was
admissible and the delay was a credibility issue to be resolved
by the jury).

This Court has held that the
"’only time requirement is that the complaint have been made
without a delay which is unexplained or is inconsistent with
the occurrence of the offense.’" Woodard, 19 Va.
App. at 27, 448 S.E.2d at 330 (quoting Edward W. Cleary, McCormick
on Evidence ‘297 (3d ed. 1984)). "The initial
determination of timeliness under the recent complaint rule is
committed to the sound discretion of the trial court, and
thereafter, timeliness is a matter for the trier of fact to
consider in weighing the evidence." Id. In Woodard,
the victim was thirteen years old and was raped by her mother’s
cousin. Several months after the rape, the victim told her
friend, who was also a rape victim, what had happened. She also
told her aunt one month after telling her friend. The Court held
that the delay was reasonably "explained by and completely
consistent with the all too common circumstances surrounding
sexual assault on minors — fear of disbelief by others and
threat of further harm from the assailant." Id. at
28, 448 S.E.2d at 330.

In Lindsey v. Commonwealth,
22 Va. App. 11, 467 S.E.2d 824 (1996), this Court upheld the
admission of a complaint made two years after the rape and held
that "while the lapse of time between the alleged event and
the report is certainly an issue, it is a question of weight
rather than of admissibility." Id. at 16, 467 S.E.2d
at 827. Quoting Wigmore on Evidence, the Court in Lindsey
said that when the evidence of a complaint is offered to
"’negative the supposed silence of the woman, it is
perceived that the fact of complaint at any time should be
received.’" Id.

We do not read Lindsey as
adopting a rule inconsistent with Woodard and the Virginia
common law.[1] Under both Woodard and Lindsey,
timeliness is a factor in determining the admissibility of the
complaint, the weight of the evidence, and the credibility of the
prosecutrix. Thus, under Code ?19.2-268.2, timeliness, in
relation to the reasons for the delay, must initially be decided
by the trial judge in order to determine whether evidence of the
complaint can be admitted. To the extent that the appellant reads
Lindsey to depart from the common law rule reiterated in Woodard,
we find that Code ?19.2-268.2 controls our decision, and Code
?19.2-268.2 is a codification of the common law as stated in Woodard.

Accordingly, we hold that the
trial judge did not abuse his discretion by admitting N.F.’s
complaint to her mother. While N.F. did not tell her mother about
the rape until ten months later, she explained the reasons for
the delay. The trial judge found the explanation to be consistent
with the nature and circumstances surrounding the offense. N.F.
was afraid her mother would not believe her because the defendant
was her mother’s good friend. She did not tell her father for
fear that he would hurt the defendant and end up in jail. She
testified that she felt responsible for the rape because she
insisted on staying home instead of going with her mother. Thus,
the trial court did not err by holding the complaint sufficiently
recent to be admissible and then permitting the jury to consider
the timeliness of the complaint in determining the weight to give
the evidence.

For these reasons, we affirm the
defendant’s conviction.

Affirmed.

FOOTNOTES:

[1] Although Code ?19.2-268.2 had been enacted when the Lindsey
case was tried, it was not expressly relied upon by the trial
court or the Court of Appeals in its opinion as the basis for
admitting the evidence of the recent complaint of rape.
Nevertheless, because we have held that Code ?19.2-268.2
incorporated the common law and expanded it to other offenses,
the holdings in Lindsey and Woodard are germane.