THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. Smith, Judge
Patrick M. Blanch (Zinicola, Blanch & Overand, PLLC, on
briefs), for appellant. 
Victoria Johnson, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Petty, O'Brien and Russell Argued at
G. RUSSELL, JR. JUDGE
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; and (4)
excluding a text message the victim sent to a friend on the
day of the preliminary hearing.
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.
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
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.
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.
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
for fifteen days out of the thirty days in August of this
[Appellant's Counsel]: Yes, and do you remember those
[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
or all of those nights?
[P.E.:] Maybe some.
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.
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."
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.
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.
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.
court allowed the transcript of P.E.'s testimony to be
read into evidence in its entirety. 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
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.
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.
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
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]."
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 ...