The Court of Appeals released just one published opinion this week. Rakim Malik Nottingham v. Commonwealth of Virginia involves two questions: First, whether the trial court erred in granting jury instruction, and second whether it erred in excluding a videotape of the victim’s interview and instead allowing the officer to testify as to victim’s demeanor during the interview. Any attorney should know that both issues involve matters of the trial court’s discretion — but an experienced attorney will know that the court’s discretion is often subject to closer scrutiny on certain issues than on others. Both the decision to give or refuse a jury instruction and to permit or exclude evidence where there is an alternative, arguably more accurate source available are two such instances where there are specific rubrics to determine whether the court exercised its discretion properly, and that is likely why the Court of Appeals chose to publish this opinion.
Nottingham arranged to meet the victim, A.K., in her hotel room where she agreed to engage in certain sexual acts for $200. Nottingham then produced a pistol, robbed A.K. and forced her to perform sexual acts, brutally assaulting her in the process. The opinion does not recount how Nottingham was identified as the assailant, but he was ultimately charged with rape, forcible sodomy, malicious wounding, and three counts of using a firearm in the commission of a felony.
At trial, sought to introduce the videotape of a police interview with A.K. the day following the rape and assault, to demonstrate the difference between A.K.’s demeanor at trial, where she was upset and crying, and her “prior inconsistent demeanor” during the interview. The court sustained the Commonwealth’s hearsay objection but allowed appellant to elicit testimony from Detective Evans concerning A.K.’s demeanor during the videotaped interview. Detective Evans testified that during the interview, A.K. appeared “calm,” did not cry, and in fact “laughed a couple of times.” In closing argument, appellant’s counsel referred to A.K.’s casual demeanor the day after the crime and contrasted it with her affect on the witness stand.
At the conclusion of the evidence, appellant objected to the Commonwealth’s proposed Jury Instruction 32. The instruction stated, “The [c]ourt instructs the jury that a conviction for rape or a conviction for forcible sodomy may be supported solely upon the testimony of the victim without further corroboration, if believed.” The court overruled the objection and granted Jury Instruction 32.
The jury convicted Nottingham and he appealed to the Court of Appeals challenging the refusal to admit the videotaped evidence and the giving of instruction 32. Although the Court of Appeals addressed the instruction issue first, I will reverse that order because, frankly, the failure to admit the videotape is, in my view, the more important issue.
Normally, where a witness is available to testify — both A.K. and the detective were witnesses for the Commonwealth — a videotape is not the best evidence of a prior statement by the witness and is hearsay. This was the basis of the Commonwealth’s objection at trial and the basis on which the court excluded the evidence.
However, Nottingham did not want to introduce the videotape in lieu of live testimony — and he certainly did not want it introduced for establishing the truth of what was said on the tape. Quite the reverse, he wanted the tape introduced to show that A.K.’s demeanor during the interview was inconsistent with her behavior at trial to impeach her trial testimony.
The Court of Appeals declines to address whether “impeachment by demeanor” is a basis for admitting hearsay evidence under Rule 2:607, instead assuming that this is the case. The Court concludes that by permitting Nottingham to cross-examine the detective on A.K.’s demeanor, the trial court acted within its discretion. The Court further noted that Nottingham had sought introduction of the entire video, which included an interview with the SANE nurse and other elements that were not relevant to the issues of A.K.s demeanor during the interview with the detective, noting that he should have redacted these irrelevant portions of the tape.
The jury instruction issue is more straightforward. A court does not abuse its discretion in granting jury instruction where the instruction is an accurate statement of the law, was not duplicative of other instructions, and addressed a relevant issue raised by the evidence. Here, instruction 32 hits all those checkmarks.
While I do not find fault with the Court’s ruling regarding the videotape’s admissibility, I do think that the issue will need to be raised again. Whenever an appellate court “assumes without deciding” an issue, it means that the issue remains to be decided. Moreover, the Court’s observation that Nottingham had not offered a redacted version of the tape suggests that this may be a factor in deciding whether to admit “evidence of demeanor” in future cases.