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Vay v. Commonwealth

Court of Appeals of Virginia

January 31, 2017



          Charles L. Weber, Jr., for appellant.

          Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Huff, Judges Russell and AtLee Argued at Richmond, Virginia



         Manneh Vay, appellant, was convicted, in a jury trial, of rape in violation of Code § 18.2-61, sodomy in violation of Code § 18.2-67.1, and abduction with intent to defile in violation of Code § 18.2-48. On appeal, he argues that the trial court erred in 1) denying appellant's motions to strike the evidence of abduction, 2) refusing to give a proposed jury instruction on the law of incidental detention, 3) failing to conduct voir dire on whether appellant voluntarily waived his right to testify, 4) refusing to strike a juror for cause, and 5) its response to questions from the jury. For the reasons stated below, we affirm.


         Underlying Facts

         "Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). This principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted).

         So viewed, the evidence established that, on September 22, 2012, the victim, L.S., then a seventeen-year-old college student, attended a party in Charlottesville. The party was crowded, and many of the guests were dancing. L.S. initially danced with her friends, but because of the crowd, she became separated from her friends and began dancing with appellant. While dancing, appellant grabbed L.S. by the waist and pushed her toward a wall. He then attempted to lift up her skirt. L.S. characterized appellant as becoming "really forceful" and testified that she intended to "just get away from [appellant]" when the song ended. Before she had a chance to leave, appellant removed his penis from his pants, grabbed her hand, and forced her to touch him. When the song ended, L.S. attempted to move away from appellant, but he grabbed her by the waist and pushed her through the crowd of people. She explained at trial:

[T]here is a guy that I don't know leading me somewhere, who knows where I'm going and he has, like, control in a sense. I don't know how to explain it, but he is using a lot of force and I know he's using a lot of force because there's [sic] so many people in that party for him to be able to push me through people. I meant literally people were---I was---my shoulders were bumping against people, . . . imagine, I don't know, there's a crowd of people around you and, you know, you're trying to get to the front of the line or something and you have to use a lot of force to get through people or else people won't move, so that's what he was doing.

         Appellant pushed L.S. through the kitchen, down a hallway, and into a bathroom, a distance of forty feet. Appellant immediately locked the bathroom door behind them and tried to remove L.S.'s skirt. L.S. tried to push his hands away and repeatedly asked him to "please stop." Appellant responded by telling her that she would enjoy it.

         Appellant eventually ripped off L.S.'s skirt and underwear. He then unsuccessfully tried to penetrate L.S. from behind. Appellant pushed L.S. to the floor and pinned her down with his body. L.S. struggled against him, repeatedly telling him to stop. Despite her efforts to resist, appellant was able to penetrate her vagina with his penis and later with his tongue. L.S. also testified that, at one point, appellant "pushed [her] shirt down and pushed [her] bra down and . . . started sucking on [her] nipple . . . using so much force [that it was] . . . painful, " which caused her to scream.

         After he was finished, appellant asked L.S. for her telephone number. L.S. swore at appellant, left the bathroom, and eventually found her friends and called police.

         Charlottesville Police Officer Tara Sanchez responded to the call of a possible sexual assault. Officer Sanchez arrived at the scene within a minute of the call and found L.S. lying on the ground with a "disconnect[ed] look on her face." She appeared as though she had been crying and was breathing heavily. Officer Sanchez described L.S. as being in "almost a hyperventilating state." L.S. did not appear intoxicated. L.S. gave Officer Sanchez a detailed account of the events that just had taken place and described appellant.

         Kathryn Laughon, Ph.D., an associate professor of nursing at the University of Virginia, testified as an expert in the field of sexual assault injuries. She was called to the emergency room on September 23 at 2:30 a.m. to meet with and examine L.S. She described L.S. as tearful and upset, but cooperative. Laughon observed bruising and redness on L.S.'s lower legs, but was unable to conduct a complete exam because L.S. complained of pain.

         Pre-Trial Hearing

         The matter was scheduled to be tried on June 10, 2013. Shortly before the trial was scheduled to commence, appellant moved to continue the trial date. The trial court convened a hearing on appellant's motion for continuance on June 4, 2013.

         At the hearing, appellant, by counsel, explained that certain witnesses he wished to call had not been subpoenaed successfully and one would be out of the country on June 10th. During the hearing, it was revealed that counsel only recently had been in touch with these potential witnesses and had sought to compel the attendance of the witnesses only recently. In attempting to explain why he previously had not sought issuance of the subpoenas, appellant's counsel indicated that he was limited in what he could say because the decision to seek the witnesses was related to "our trial strategy[, which] has been evolving."

         The trial court responded by noting that it did not want appellant to have to reveal anything protected by the "attorney/client privilege or [reveal trial] strategy." The trial court asked if the Commonwealth would allow him to discuss the issue with just appellant and his counsel so the court would be fully aware of the reasons for the requested continuance but "any [trial] strategy wouldn't be disclosed to the Commonwealth . . . ." The trial court made clear it would take this step "only if the Commonwealth doesn't object."

         The Commonwealth did not object, and the courtroom was cleared. The trial court noted that "for the record, the Commonwealth has left and nobody is left in the courtroom other than the bailiff, [appellant], [appellant's counsel], the court reporter, [and] the clerk." At that point, appellant's counsel indicated that the witnesses in question were being sought to testify about certain aspects of the party, e.g., how people ended up there, the lighting, the physical layout of the premises, etc.

         The reason counsel had not sought the attendance of the witnesses before was that appellant could testify about these issues; however, according to counsel, the defense recently had decided that appellant would exercise his right not to testify, thus requiring other witnesses to establish the facts counsel had planned to elicit from appellant. Specifically, counsel told the trial court that

[w]e came to a point where I had a fairly frank discussion with [appellant] and said it might be in his best interest to consider not testifying at trial. That was fairly recent, after I've had several meetings with [appellant] and came to the conclusion---we came to that conclusion [that he would not testify].

         Although present in the courtroom without any opposition present, appellant gave no indication that counsel's statement was anything less than absolutely accurate. Based on the representations in the closed hearing, the trial court granted appellant's motion for a continuance.


         During voir dire, the Commonwealth asked whether anyone served as a volunteer for groups that worked with the victims of sexual assault. One juror, a sociology professor at the University of Virginia who is affiliated with Women and Gender Studies at the University, stated that she had supervised students who were involved with the local Sexual Assault Resource Agency and had done research projects on the issue of sexual assault. The juror was asked if she would be able to "sit impartially" and make a decision in the case based solely on the evidence presented. She responded, "Yes." Although both parties asked additional specific questions about her ability to be impartial, the juror continued to maintain consistently that she could be impartial and that, if seated, she would decide the case on the evidence presented.

         Appellant objected to seating the juror because "her extensive experience with sexual assault cases and having her students volunteer with various programs has led her to a bias against the defendant." The court overruled the motion, stating that the juror was "unwavering and very credible" and that he "was listening carefully to see if there's any hesitation and [there] was none . . . ."

         After the Commonwealth presented its evidence and rested its case, the trial court asked appellant's counsel, "[Y]ou've discussed with your client his right to testify and his right not to testify?" Appellant's counsel responded, "Yes, Your Honor." The trial court asked if appellant was exercising his right not to testify, and appellant's counsel replied, "I believe so, Your Honor" and "I haven't discussed that with him very recently, so I will discuss that with him again." The trial court stated, "That's fine, . . . I want to give you ample time to do that and so we will take a recess and let us know when you're ready." Appellant was present in the courtroom during the exchange. After the recess, appellant's counsel made a motion to strike the abduction with the intent to defile charge. The trial court denied the motion.

         Appellant then called one witness and rested his case at the conclusion of that witness' testimony. Appellant did not testify.

         Having rested his case, appellant renewed his motion to strike. Both appellant and the Commonwealth reasserted the arguments that had been made when the motion to strike had been made at the close of the Commonwealth's evidence. The trial court again denied the motion to strike.

         After deliberating during the guilt phase, the jury returned guilty verdicts on all three charges.

         Jury Sentencing Phase

         During the sentencing phase of the trial, the jury sent the following questions to the trial court: "Do these 3 sentences run concurrently?" and "Can we recommend that the sentences be served concurrently?" The trial court stated to counsel, outside the presence of the jury, "I think the whole answer is that they don't have the authority to . . . recommend they run concurrently." The trial court then asked appellant's counsel, "Do you agree with that?" Appellant's counsel replied, "I think that's right, Judge." The trial court proposed, "We could say imposing concurrent sentences is not within the province of the jury." Appellant's counsel stated, "Yes, that sounds right." The Commonwealth agreed. The record indicates the trial court wrote the response and sent it to the jury room. For the guilty ...

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