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Massey v. Commonwealth

Court of Appeals of Virginia

December 13, 2016



          Patrick M. Blanch (Zinicola, Blanch & Overand, PLLC, on briefs), for appellant. [1]

          Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, O'Brien and Russell Argued at Alexandria, Virginia



         Charles Albert Massey, III, appellant, was convicted by a jury of abduction with intent to defile in violation of Code § 18.2-48 and two counts of rape in violation of Code § 18.2-61. On appeal, he contends the trial court erred by: (1) denying his motion for a new trial because the Commonwealth failed to timely disclose exculpatory evidence; (2) not finding certain police reports exculpatory; (3) admitting into evidence the preliminary hearing testimony of the victim during the Commonwealth's case-in-chief[2]; and (4) excluding a text message the victim sent to a friend on the day of the preliminary hearing.


         Preliminary Hearing

         Appellant was arrested on September 4, 2013, for two counts of rape and one count of simple abduction. The preliminary hearing was held on November 1, 2013, in the Fairfax County Juvenile & Domestic Relations District Court. The victim, P.E., testified that she previously had been engaged to appellant and had lived with him for approximately nine months. They broke off the engagement in April of 2013 after she was released from a five-day involuntary stay in a rehabilitation facility. Her time in the rehabilitation facility was the result of the combined efforts of her father and the appellant to place her there.

         P.E. stated that appellant telephoned her late at night on September 3, 2013, because he needed to talk to someone about the difficult time he was having in coping with a sick grandmother. She allowed him to visit her at her studio apartment in Fairfax, and he arrived close to midnight. After trying to console appellant, she asked him to leave because it was late and she needed to be at work early the next morning. Appellant did not want to go and indicated that he would sleep on the couch. Initially, P.E. agreed, but she was unable to sleep and felt uncomfortable with appellant being in her apartment. Again, she asked him to leave, but he refused.

         P.E. testified that she opened the door for appellant to leave, but he shut the door and dragged P.E. towards her bed. He threw her onto her bed and raped her twice. At some point during the night he struck her in the face and strangled her until she "black[ed] out or nearly black[ed] out." The next morning, appellant allowed P.E. to get dressed, but did not permit her to go to work because of the bruising on her face. He drove them to a house in Alexandria where they used to live so that appellant could pack some of his belongings for a trip to his home state of Mississippi. Before leaving the house, appellant bound P.E.'s hands and feet with clear packing tape, covered her in a blanket, and placed her in the back seat of his car. Appellant eventually removed the tape from P.E. and left her on a road near her parents' home in Fairfax.

         On cross-examination, defense counsel asked P.E. several questions that P.E. claimed she was unable to answer, including the following:

[Appellant's Counsel]: Tell me, when was the first time you had sex with him after you broke off the engagement?
[P.E.:] I don't recall.
[Appellant's Counsel]: Well, was it a matter of days[?] Would you agree with that?
[P.E.:] I'm not sure.

         P.E. admitted that, while intoxicated, she telephoned appellant from a bar on June 13, 2013, and he took her home, yet she did not remember whether she had sex with him on that occasion. She also remembered that she was in a bar on July 13, 2013, and called appellant on that night. She stated that "[i]t's possible" that she had sex with him that evening. P.E. also called appellant from her parents' house in July, and indicated that it's "possible" she had sex with him at that time, although she was too drunk to remember. P.E. was also questioned about her stay with appellant in August:

[Appellant's Counsel]: Did you or did you not stay in his house
for fifteen days out of the thirty days in August of this year?
[P.E.:] Yes.
[Appellant's Counsel]: Yes, and do you remember those nights?
[P.E.:] Not particularly, no.
[Appellant's Counsel]: Why?
[P.E.:] I guess I just tried to block them out.
[Appellant's Counsel]: Well, was there drinking and sex on some
or all of those nights?
[P.E.:] Maybe some.

         Other instances of lapses in memory included her inability to remember if she exchanged text messages with appellant on September 3, 2013, whether there was any discussion about who used the condoms beside her bed, whether she remembered throwing appellant's keys on September 3, and whether she communicated with "Adam" on September 4.

         In response to P.E. stating that appellant "usually told my dad that I had problems or issues, and that he was trying to help me[, ]" counsel asked P.E., "Didn't [appellant] and your father collaborate on that path to help you?" P.E. replied "Yes."

         After P.E.'s response, the Commonwealth objected to the line of questioning on the basis of relevance, and the court sustained the objection. In response, appellant's counsel stated "All right." At that time, he neither presented an argument designed to overcome the objection nor did he proffer questions he would have asked or answers he expected to receive to any such questions but for the court's ruling on the Commonwealth's objection.

         The district court certified all charges to the grand jury. The grand jury returned four indictments. In addition to the charges that were pending at the time of the preliminary hearing, the grand jury indicted appellant for an additional charge - abduction with the intent to defile in violation of Code § 18.2-48.


         P.E. died prior to trial. Appellant filed a motion in limine to exclude P.E.'s preliminary hearing testimony from his trial arguing that introduction of the preliminary hearing transcript violated Rule 2:804(b)(1) and appellant's Sixth Amendment right of confrontation. Specifically, appellant argued in the motion that the preliminary hearing transcript should not be read at trial because "defense counsel was precluded during his cross-examination from inquiring into several important matters" and because "after the preliminary hearing, through the course of discovery, the Commonwealth produced to defense counsel numerous materials that contradict [P.E.'s] testimony that could have been used to contradict" her.[3]

         The court allowed the transcript of P.E.'s testimony to be read into evidence in its entirety.[4] Thus, the jury heard P.E.'s statements regarding a lack of memory and her affirmative response to the question, "Didn't [appellant] and your father collaborate on that path to help you?"

         Patricia Taylor, an acquaintance of appellant, testified at appellant's jury trial that she spoke with appellant at 12:30 p.m. on September 4. Appellant told Taylor that he thought he needed help. He told her that he and P.E. had fought and that he "kind of made her have sex with [him]." Taylor asked if he had sexually assaulted P.E., and his response was "Yes." He also told Taylor he had bound P.E. with tape, wrapped her in a blanket, and driven her to her father's home.

         The Commonwealth called Elizabeth Roach, a Sexual Assault Nurse Examiner who works at INOVA Fairfax Hospital. Roach performed a sexual assault examination on P.E. on September 4, 2013. Roach testified in detail about the numerous bruises and abrasions P.E. had over significant portions of her body. She testified that her examination revealed a reddened area on the hymen, indicating a fresh injury. She agreed that the injury was consistent with a report of "forcible penile vaginal penetration." Roach also testified regarding P.E.'s report to her on the morning of September 4. According to Roach, P.E. reported that, the previous night,

she had been in her apartment. Her ex-fiancée was there. He was not allowing her to leave. She said he had forcible penile vaginal penetration with her twice, on two occasions. That he strangled her on several occasions. She - he also suffocated her by putting his hand over her nose and mouth, making it difficult for her to breathe. And on another occasion, stuck a sheet into her mouth to make it difficult for her to breathe, so that - she felt that it was so she wouldn't scream. She said that her hands and her feet were bound with the tape and that she was wrapped in a blanket and put in the back seat of the car and removed.

         Roach also testified, without objection, that "post-traumatic stress" causes victims of sexual assault to have memory issues. Comparing memories of the sexual assault to a deck of cards, Roach testified that "it takes [victims] a while to retrieve all the cards. Sometimes they never retrieve them in their lifetime; sometimes they may retrieve a card years or months later. So they have a hard time . . . to tell a story in a complete start to finish." Roach also stated that post-traumatic stress can explain why a sexual assault victim may give inconsistent accounts of the same event to different people.

         Appellant testified that he and P.E. fought on the night of September 3, 2013. They engaged in a mutual physical fight and then engaged in consensual sex as a way to make up. Appellant testified that, prior to the sexual activity, P.E. had asked him to leave and opened the door to the apartment so that he could leave. Appellant acknowledged refusing to leave and closing the door. Furthermore, he claimed that P.E. threatened to scream if he did not leave, began screaming when he refused, and that he grabbed her and placed his hand over her mouth, apparently for the purpose of muffling her screams. He claimed to have done this in an effort to get her to "calm down." Appellant admitted to hitting P.E. in the past and binding her wrists and ankles on this occasion. He also acknowledged that he told Taylor that he "kind of made [P.E.] have sex with [him]."

         Over the course of trial, multiple text messages that had been sent by P.E. were introduced. Regarding her appearance at the preliminary hearing, P.E. texted a friend that appellant's "attorney was an idiot and when he cross examined me I gave him nothing to work with . . . . It was almost fun. I even questioned him when he was talking about irrelevant info, but the judge ...

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