THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, April 29, 1995 TAG: 9504290347
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY KAREN JOLLY DAVIS, STAFF WRITER
DATELINE: ACCOMAC LENGTH: Medium: 88 lines
Justice is one thing; the letter of the law can be another. Hopefully, they overlap. But two rulings by the Virginia Court of Appeals have Eastern Shore residents perplexed.
One case, the conviction of a confessed rapist, was overturned because no one testified that the defendant was not married to his 12-year-old victim. Such a marriage would have been illegal if it had existed - which it didn't.
In the other, a man was arrested for driving under the influence after he pulled up to a Chesapeake Bay Bridge-Tunnel tollbooth and told the attendant he was lost.
The driver was nearly 60 miles from home and had two passengers in the car, one of whom was a 3-year-old boy. But his felony conviction for driving drunk as a habitual DUI offender was overturned.
Why? Because the arresting officer had not actually seen him driving.
Court records tell the puzzling stories:
In July 1991, George T. Smith Jr. was baby-sitting for his girlfriend, who had gone to the local community college. Smith, 23 at the time and living in Painter, had no criminal record and worked in chicken-processing plants.
In his handwritten confession, Smith said he saw his girlfriend's 12-year-old sister while she was inthe bathroom, washing her face. He took her by the wrists, led her to a nearby bedroom and put her down on the bed.
Testimony revealed that the girl didn't struggle at first, because she thought he was ``just playing.'' Once the reality of her situation became apparent, she repeatedly said ``no,'' and cried.
During Smith's Circuit Court trial in Accomac, his attorney argued that the prosecutor failed to prove that Smith was not married to the victim - one of the legal definitions of rape. But Circuit Court Judge Glen Tyler reminded him that a 12-year-old cannot be legally married. He found Smith guilty and gave him a 5-year sentence. Smith had no prior criminal record.
Smith appealed. A three-judge panel of the Virginia Court of Appeals in Norfolk reversed the decision. Judge James W. Benton Jr. wrote the opinion on March 28, 1995. He also wrote the opinion in the DUI case.
Of the rape case, Benton said:
``Evidence that Smith was `not a resident in (the victim's) house,' that he dated the victim's sister, that Smith had a different last name than the victim, and that the victim was a virgin, did not suffice to prove beyond a reasonable doubt that Smith was not the victim's spouse.''
Don Harrison, spokesman for the state Attorney General's office, said the case will now go to the full nine-judge Appeals Court and could be reversed again. Smith spent about two years in jail. If the three-judge ruling stands, his record will be clean.
``When we tried it here, we won it,'' said Accomack Commonwealth's Attorney Gary Agar. ``If they want to let a rapist go because of that, that's up to the appellate court.''
The drunken-driving case is equally perplexing.
According to court records, 25-year-old Carroll R. Bishop of Parksley drove up to the Chesapeake Bay Bridge-Tunnel tollbooth in January 1993. He said he was lost and asked the attendant if he could turn around.
Bishop already had a record of drunken driving, and had been declared an habitual offender in 1991.
Officer Anita Stockton, with the bridge-tunnel police, smelled alcohol on Bishop and told him to put the car into park. Bishop had an adult passenger in the front seat and 3-year-old boy in the rear. On testing, Bishop was found to have a 0.11 blood-alcohol content. At that time, anyone with a blood-alcohol content of 0.10 or above was considered drunk. The standard is now 0.08.
At Bishop's trial, lawyers argued whether there is such a thing as safe drunken driving. Bishop's attorney said that no one had seen him weave, speed, run a red light or do anything overtly dangerous. So, said the lawyer, it could not be proven that he had endangered ``life, limb or property,'' as required by the law for a felony conviction.
Judge Tyler did not agree.
``The driving itself specifically and directly endangered the passengers,'' ruled Tyler. He sentenced Bishop to 12 months in jail.
Three judges of the appellate court reversed Tyler's decision. No one had seen Bishop driving, wrote Judge Benton in his opinion of April 11, 1995. And in this case, drunken driving itself could not be considered a felony, only a misdemeanor.
``The question is, is driving drunk driving so as to endanger life and property?'' said Bruce Jones, the commonwealth's attorney in Northampton County, who prosecuted the case. ``I consider this decision totally bizarre.''
Officials with the state Attorney General's office say they will not pursue this case further.
KEYWORDS: RAPE SEX CRIME DRUNKEN DRIVING CONVICTION APPEAL
VIRGINIA COURT OF APPEALS by CNB