Cipolla v. Commonwealth

CHRISTOPHER FRANCIS CIPOLLA v. COMMONWEALTH OF VIRGINIA

Record No. 1976-17-2

COURT OF APPEALS OF VIRGINIA

JUNE 18, 2019

UNPUBLISHED

Present: Chief Judge Decker, Judge Beales and Retired Judge Bumgardner^*

Argued at Richmond, Virginia

MEMORANDUM OPINION^** BY JUDGE RUDOLPH BUMGARDNER, III

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Edward A. Robbins, Jr., Judge

Norman A. Thomas for appellant.

Rachel L. Yates, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Christopher Cipolla appeals his convictions for indecent liberties with a minor in a custodial relationship, Code § 18.2-370.1, forcible sodomy, Code § 18.2-67.1, and aggravated sexual battery, Code § 18.2-67.3. The defendant began sexually molesting his girlfriend's daughter in 2005 when the child was six or seven years old. The abuse continued until 2010 when the girl was in the sixth grade and asked him to stop. However, she did not report the defendant's conduct to the police until February 2015.¹

The defendant contends that the trial court erred in not striking for cause Jurors 135 and 154 because "their voir dire responses established that they could not serve as impartial jurors who were indifferent to the cause." He also maintains that the trial court erred in not allowing anexpert witness, who had conducted psychosexual tests on the defendant, to testify in the guilt phase of the trial that the defendant "did not show any paraphilic tendencies."² Concluding the trial court did not err, we affirm the convictions.

"In determining whether the trial court should have excluded the prospective jurors challenged by the defendant, this Court must consider the 'entire voir dire, not just isolated portions.'" Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 62 (2011) (quoting Juniper v. Commonwealth, 271 Va. 362, 401 (2006)). In assessing the responses during voir dire, the trial court must assess whether the jurors "indicate to the court something that would prevent or substantially impair the performance of [their] duties as a juror in accordance with [the court's] instructions and [the juror's] oath." Andrews v. Commonwealth, 280 Va. 231, 256 (2010) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

During voir dire, the trial court informed the prospective jurors of the offenses for which the defendant was charged. When the court said, "[i]f there is anyone who feels they have such a strong personal opinion about trials, the justice system, or the particular subject matter of this case that you cannot give each side a fair trial, please raise your hand," none of the jurors responded that they could not be impartial.

Defense counsel asked the venire whether any of their family members, their friends, or colleagues had been affected by unwanted sexual contact. Juror 135 stated that, about fifty years ago, her two sisters had experienced unwanted sexual contact from their foster parents and their father. She believed that the foster parents had been incarcerated as a result of their conduct but stated that her father had not been prosecuted. Juror 135 said that she had spoken with her sisters about the incidents, that the allegations against her father were "hard to believe," and that it hadbeen "a really long time ago." Defense counsel asked, "[D]o you think this would make you kind of relive what your sisters have told you about that event, if there were some similar issues that arose?" Juror 135 responded, "I don't know. I don't know the exact issues because we were kids, you know. So I can't, you know — ." She acknowledged, however, in response to defense counsel's question, that she could not be certain that hearing similar evidence would not cause her to relive her sisters' experiences. Juror 135 was asked no further questions.

Juror 154 responded that his sister's daughter had been abused and that the matter was still pending in a court in North Carolina. Counsel then asked, "Do you think hearing something like this will make you relive the events that your niece might be talking about, or experiencing?" Juror 154 said, "Potentially." Juror 154 was not questioned further.

At the conclusion of the voir dire, the defendant moved to strike Jurors 135 and 154 for cause.³ The trial court denied the motion. The trial court stated that the incidents addressed by Juror 135 had taken place no less than forty years ago. Noting that Juror 154 had said only that he would "potentially" relive what had happened to his niece, the trial court said that "it doesn't appear from what he said, or what the Court observed that [Juror 154] is anything other than indifferent to the cause."⁴

We cannot say that the trial court abused its discretion in denying the defendant's motions to strike prospective Jurors 135 and 154 for cause.⁵ Jurors 135 and 154 were not victimsof sexual abuse. Defense counsel did not ask the jurors whether the experiences of their family members would affect their ability to be fair and impartial in the case. Rather, counsel asked them only if hearing the trial testimony about the sexual abuse of the victim would cause them to relive the events described by their family members, and neither juror expressly said that it would do so. Nothing in the jurors' responses indicated that they would be unable to hear the case impartially or that they would have a bias toward one side or the other. See Lovos-Rivas, 58 Va. App. at 62-63 ("[W]e certainly cannot conclude from this brief and isolated portion of voir dire that any of these prospective jurors actually held a 'preconceived view that is inconsistent with an ability to give [appellant] a fair and impartial trial' in this case." (quoting Sizemore v. Commonwealth, 11 Va. App. 208, 211 (1990))). It is the defendant's burden to show that the juror challenged cannot be impartial. That was not done for either challenge.

Accordingly, the trial court did not abuse its discretion in denying the motion to strike Jurors 135 and 154. See Hopson v. Commonwealth, 52 Va. App. 144, 151 (2008) (stating that an appellate court gives deference to a trial court in matters of jury selection because "a trial judge who personally observes a juror, including the juror's tenor, tone, and general demeanor, is in a better position than an appellate court to determine whether a particular juror should be stricken" (quoting Teleguz v. Commonwealth, 273 Va. 458, 475 (2007))).

Dr. Dennis Carpenter, a psychologist who specialized in cases involving abnormal sexual behavior, examined the defendant at the request of defense counsel. Carpenter concluded from the defendant's responses to a battery of psychosexual tests that the defendant did not show "any paraphilic tendencies" and did not fit the profile of individuals who engaged in "abhorrent sexual behavior." When the defendant attempted to present Carpenter's testimony in the guilt phase of the trial, the Commonwealth objected that the evidence was not relevant and would infringe upon the ultimate issue in the case. The trial court sustained the objection.

Whether expert testimony is admissible is left to the discretion of the trial court, and the court's decision will not be reversed on appeal unless the court abused its discretion under the particular facts of the case. See Kilby v. Commonwealth, 52 Va. App. 397, 410 (2008). The defendant argues that the trial court erred in not permitting Carpenter's testimony because the evidence was relevant and he had a constitutional right to present evidence favorable to his defense.

"[E]vidence has relevance if it tends to establish the probability or improbability of a fact in issue." Thomas v. Commonwealth, 44 Va. App. 741, 754-55, adopted upon reh'g en banc, 45 Va. App. 811 (2005); see Va. R. Evid. 2:402(a) (defining "relevant evidence" as "evidence having any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence"). The defendant contends that the proffered evidence would tend to establish the improbability that he sexually abused the victim but would leave to the jury's determination whether, in fact, he committed the abuse. See Zook v. Commonwealth, 31 Va. App. 560, 567 (2000) (where the police officer investigating a car accident testified about the relationship between a crack in the car's windshield and the injury to the defendant's head, but did not testify that the defendant was driving the car, his testimony "merely presented evidence that allowed the jury to draw [the] inference" that the defendant was the driver).

The trial court determined that evidence regarding the defendant's sexual preferences was not relevant because "there are people that are sexual deviants that don't engage in criminal conduct, and there are people that are not sexual deviants that do." Evidence that the defendant did not exhibit "paraphilic tendencies" was not relevant to show that he lacked the requisite state of mind to commit the offenses⁶ because evidence of a defendant's mental state is irrelevant tothe issue of guilt unless an insanity defense is raised or such evidence is permitted by statute. See Stamper v. Commonwealth, 228 Va. 707, 717 (1985) (holding that psychiatric testimony that the defendant was a manic-depressive was not admissible as proof that he had been incapable of forming the intent to distribute marijuana); Johnson v. Commonwealth, 70 Va. App. 45, 53 (2019) (holding that where the defendant was charged with eluding the police in violation of Code 46.2-817, the proffered testimony of the defendant's expert witness, that the defendant's post-traumatic stress disorder caused her to believe that someone other than a law enforcement officer was pursuing her on the highway, was not admissible); Peeples v. Commonwealth, 30 Va. App. 626, 633-34 (1999) (en banc) (holding that the testimony of the defendant's expert that the defendant suffered a mental disability was not admissible to establish that the defendant had acted in the heat of...