COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Benton and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

YAZID ABUNAAJ 

 OPINION BY 

v. Record No. 1854-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JULY 21, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N.A. Kendrick, Judge 

 Jonathan Shapiro for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Yazid Abunaaj (appellant) was convicted in a jury trial of 

rape in violation of Code § 18.2-61 and animate object sexual 

penetration in violation of Code § 18.2-67.2. On appeal, he 

contends the trial court erred in: (1) admitting a tape 

recording of a telephone conversation he had with the victim; (2) 

giving insufficient cautionary instructions and rulings regarding 

alleged pretrial offers of payment to potential witnesses; (3) 

allowing testimony that appellant was HIV-positive; and (4) 

refusing to grant surrebuttal testimony. For the following 

reasons, we reverse the convictions. 

I. Background

 "[W]e review the evidence in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Pavlick v. Commonwealth, 25 Va. App. 538, 
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541, 489 S.E.2d 720, 721 (1997), aff'd, 27 Va. App. 219, 497 

S.E.2d 920 (1998) (en banc). Appellant and the victim, D.T., 

worked at adjoining businesses in a shopping mall. They met on 

March 28, 1996, when D.T. and her husband had their hair cut at 

appellant's workplace. D.T. knew appellant by sight but denied 

the existence of a closer relationship prior to that date. 

 On April 2, 1996, D.T. and appellant met after work and 

spent thirty to forty-five minutes parked in his car. D.T. 

testified that during their conversation appellant expressed an 

interest in a relationship with her but she refused, saying they 

could be friends. She further testified that appellant did not 

kiss her or touch her while they were talking in the car. 

Appellant testified that he and D.T. engaged in intimate kissing 

and touching while in the car, and they attempted, but did not 

complete, sexual intercourse. When D.T. returned home that 

evening she did not tell her husband of her meeting with 

appellant. 

 The next morning, April 3, 1996, D.T. went to work, but, due 

to a scheduling mix-up, another employee, Hong Nguyen, was also 

present. They decided that Nguyen would work the morning shift 

and D.T. would work in the afternoon. After she left the store, 

D.T. saw appellant in the mall and agreed to go to lunch with 

him. When they left for lunch, appellant said he had to stop by 

his house to retrieve something, and they drove to his home in 

Arlington. 
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 Appellant showed D.T. around the house, and when they 

reached his bedroom he began to make advances toward her and kiss 

her. She said, "No, I told you we were going to lunch." He 

relented and asked her to look at pictures while he completed a 

few chores. Appellant left the room for a moment and when he 

returned he pushed D.T. down on the bed and tried to kiss her. 

She told him no, but "he wouldn't leave me alone." She 

testified, "I wanted to leave but he wouldn't let me go." She 

resisted as he attempted to remove her clothing. They struggled 

"for quite a while," until appellant pinned D.T. on her stomach, 

removed his pants and her underpants, and penetrated her vagina 

with his finger and his penis. When he was done, he got up "as 

if nothing had happened" and suggested they shower together. 

 While appellant showered, D.T. dressed and left appellant's 

house in tears. She used the phone at a service station two 

blocks away to call a cab. The cab took her to the shopping 

mall, where she stopped at an ATM for the fare and drove home. 

When D.T. arrived at home she called Nguyen and asked Nguyen to 

cover her shift that afternoon. Throughout the afternoon and 

evening appellant stopped in and phoned the store, asking about 

"the girl." 

 Later, D.T. informed her husband of the attack and reported 

the rape. The police photographed bruises on her arm and sent 

her to the hospital for an examination. Officer Kevin White saw 

"visually obvious" developing bruises on both of D.T.'s forearms 
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in the "wrist area." 

 At trial, the defense called eight witnesses who testified 

that appellant and D.T. had friendly contact at the mall. In his 

own defense, appellant testified that D.T. had consented to have 

intercourse. The Commonwealth put on rebuttal evidence, much of 

which was admitted over defense objection. The contested 

evidence included a tape recorded conversation between appellant 

and D.T. the day after the incident and testimony from Mark 

Wright, an inmate in jail with appellant, regarding appellant's 

HIV status. The trial court denied appellant's request to put on 

surrebuttal evidence in response to the tape recording and 

Wright's testimony. 

II. Tape Recording

 The Commonwealth cross-examined appellant about a telephone 

conversation he had with D.T. the day after the incident. 

Appellant testified that he remembered the conversation but could 

not recall specifics. He denied apologizing to D.T. for not 

letting her leave his house and denied saying he had lost 

control. 

 On rebuttal, the Commonwealth produced a tape recording of 

the conversation, revealing that the day following the incident, 

at the request of the police, D.T. had initiated telephone 

contact with appellant from police headquarters. D.T. testified 

that Detective Chase told her to tell appellant she had said, 

"no." Police officers recorded the call on police equipment and 
 -5- 

 

were present in the room with D.T. during the entire 

conversation, part of which took place on a speaker phone. 

Appellant objected to the admission of the tape on the ground it 

had not been disclosed to the defense pursuant to his discovery 

request. The trial court overruled appellant's objection and 

denied his request to review the tape prior to its introduction 

into evidence. 

 The Commonwealth played the tape and distributed transcripts 

to the jury. On the tape, appellant made the following 

statements: "I know. I know you didn't want to do it. I don't 

know why. I know I've been stupid, a little bit." In response 

to D.T.'s statement that she could not understand his behavior, 

appellant said: "Okay. I've been crazy. I've been stupid. 

I've been, I make a mistake. I make a mistake. Now, I'm sorry 

about it. I'll try to do my best to prove I'm not that way. I 

just lost my control for, I don't know." 

 Appellant contends the Commonwealth's failure to disclose 

the existence of the tape and its contents violated its 

obligation under the parties' consent discovery order to turn 

over all recorded statements made to law enforcement officers. 

We agree. 

 The parties' consent discovery order, entered July 24, 1996, 

was a limited version of Rule 3A:11.1

 The order provided for 

 1The parties' consent discovery order inserts language 

limiting the Commonwealth's disclosure obligation to recorded 

statements made by appellant "to law enforcement officers." 

Rule 3A:11 distinguishes between unrecorded statements and 
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inspection of "[a]ll written or recorded statements or 

confessions made by the accused to law enforcement officers, or 

copies thereof, or the substance of any oral confessions or oral 

statements made by the accused to any law enforcement officer." 

(Emphasis added). Appellant's trial counsel agreed to the 

limited form of the order in response to the prosecutor's 

assurance of "open file" discovery. This Court has held that a 

consent discovery order, rather than Rule 3A:11, will govern 

discovery in a criminal case when such an order is in place. See

Williams v. Commonwealth, 16 Va. App. 928, 934-35, 434 S.E.2d 

343, 347 (1993) (enforcing consent discovery order identical in 

relevant part to the instant order).2

 

recorded statements. Rule 3A:11(b)(1) provides: "Upon written 

motion of an accused a court shall order the Commonwealth's 

attorney to permit the accused to inspect and copy or photograph 

any relevant (i) written or recorded statements or confessions 

made by the accused, or copies thereof, or the substance of any 

oral statements or confessions made by the accused to any law 

enforcement officer, the existence of which is known to the 

attorney for the Commonwealth . . . ." (Emphasis added). Under 

Rule 3A:11, appellant's recorded statements known to the 

Commonwealth must be disclosed, whether or not they were made to 

law enforcement officers. The Rule requires disclosure of 

appellant's unrecorded statements only if they were made to law 

enforcement officers. Virginia is one of several states that 

draws this distinction. See 2 LaFave & Israel, Criminal 

Procedure § 19.3(c) (1991). 

 2The Commonwealth argues that this Court's decision in 

Williams relieved it of the duty to disclose the taped 

conversation. See Williams v. Commonwealth, 16 Va. App. 928, 434 

S.E.2d 343 (1993). In Williams, the Commonwealth was not 

required to disclose the defendant's letter instructing a friend 

on his testimony, because there was no evidence the friend was a 

law enforcement officer or that the police were involved in 

initiating the contact or were active participants in it. See

id. The instant case is distinguishable on the basis of the 

degree of police involvement and participation in the challenged 
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 By means of the consent discovery order and a separate 

letter restricting its "open file" policy to evidence to be used 

during its case-in-chief, the Commonwealth limited its disclosure 

obligation. Assuming without deciding that the Commonwealth's 

procedure effectively fulfilled its duty to disclose, see United 

States v. Brodie, 871 F.2d 125 (D.C. Cir. 1989) (pretrial 

disclosure under Federal Rule of Criminal Procedure 16 applies to 

statements of the defendant to be used in impeachment as well as 

case-in-chief); United States v. Scafe, 822 F.2d 928, 935 (10th 

Cir. 1987) (Rule 16(a)(1)(A) is not restricted to statements to 

be used in the case-in-chief, it applies to "relevant written or 

recorded statements made by the defendant" irrespective of their 

intended use); United States v. Caldwell, 543 F.2d 1333 (D.C. 

Cir. 1974), cert. denied, 423 U.S. 1087 (1976) (applying federal 

disclosure rules to statements made to third parties as well as 

to agents of the government), we consider whether the 

Commonwealth's failure to disclose the recorded conversation 

violated the terms of the consent discovery order. 

 The consent discovery order required disclosure of all 

recorded statements of the accused "made to law enforcement 

officers." Under the circumstances of this case, the recorded 

statements were effectively made to the police. D.T. called 

appellant from the police station on a police speaker phone. The 

police initiated the contact and recorded the call on their 

 

communication. 
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equipment. Police officers coached D.T. on what to say and were 

present in the room at the time of the call. Although appellant 

was speaking to the victim, these facts demonstrate police 

involvement to such a degree that appellant's statements were 

effectively made to the police as well. 

 Additionally, D.T.'s compliance with police requests 

effectively made her an agent of the police. D.T. initiated 

telephone contact with appellant because a police officer told 

her it would be in her best interests. She phoned from the 

police station and allowed the call to be recorded on police 

equipment for the same reason. She lied to appellant and told 

him she was calling from home to avoid revealing her location. 

She followed a detective's instructions and told appellant she 

said "no" to his advances. Because appellant's statements were 

made directly to an agent of the police who was in the presence 

of police officers, and they were recorded on police equipment, 

the tape of the conversation constituted a recorded statement 

made to law enforcement officers. Consequently, we hold that 

even under the limited discovery order, the Commonwealth was 

required to produce the tape recording and transcript of the 

conversation for appellant's inspection, and its failure to do so 

was a violation of even the limited discovery order. 

 To be entitled to relief, appellant must demonstrate 

prejudice resulting from the discovery violation. See Conway v. 

Commonwealth, 12 Va. App. 711, 716, 407 S.E.2d 310, 313 (1991) 
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(en banc) (Commonwealth violated discovery order by failing to 

disclose a tape recording of the defendant's conversation with 

the police). The instant facts resemble the situation in Conway, 

where, "[w]hile the credibility of both Conway and Detective 

Harding were before the jury, only Harding had the opportunity to 

listen to a recording of the conversation prior to testifying 

about its content." Id. at 716, 407 S.E.2d at 313. Although the 

Commonwealth disclosed to the defense the substance of Conway's 

conversation with Detective Harding, 

 Conway was not told until after he testified 

that a recording existed which directly 

supported Harding's recollection of the 

conversation and contradicted his own. 

Therefore, we find that the Commonwealth's 

failure to disclose the existence of the tape 

prior to Conway's testimony prejudiced 

Conway's defense. 

 Furthermore, we find that the prejudice 

suffered by Conway was not so slight as to 

make admission of the tape recording harmless 

error. The evidence presented at trial was 

circumstantial and the Commonwealth's case 

rested to a large extent on the credibility 

of witnesses. Use of the tape recording 

during rebuttal without prior disclosure 

undercut Conway's credibility without the 

opportunity for explanation or 

rehabilitation. In closing argument, the 

Commonwealth repeatedly emphasized that 

Conway's entire testimony was untruthful and 

the correct version of events was that 

presented by the Commonwealth's witnesses. 

On this record, we cannot say that Conway had 

a fair trial on the merits of the case. 

Id. at 716, 407 S.E.2d at 313. 

 The prejudice was equally compelling in the instant case. 

Appellant, unaware of the existence of the tape, acknowledged on 
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cross-examination that he spoke with D.T. the day after the 

incident, but as he recalled the conversation six months earlier, 

he denied making several statements. Appellant first became 

aware of the existence of the tape when the Commonwealth 

introduced it to attack his credibility on rebuttal. 

 Here, as in Conway, the Commonwealth's case relied upon 

circumstantial evidence and the credibility of the witnesses. 

The prosecution's use of appellant's undisclosed recorded 

statements to contradict his trial testimony clearly affected his 

credibility before the jury, and he was given no opportunity to 

explain his statements. "On this record, we cannot say that 

[appellant] had a fair trial on the merits of the case." Id. 

Consequently, we hold that the admission of the tape and 

transcript was not harmless error, and we reverse. 

III. HIV Testimony

 Because this issue is likely to arise again on remand, we 

also address whether the trial court erred in allowing testimony 

that appellant was HIV-positive without giving him the 

opportunity to provide evidence to the contrary. 

 In its rebuttal case, the Commonwealth called Mark Wright, a 

prior acquaintance of appellant's and an inmate at the jail where 

appellant was housed. Wright testified that, while at the jail, 

appellant told him that on the day of the incident "[D.T.] told 

him three times to stop." When asked about his motive for 

revealing appellant's confession, Wright, over defense objection, 
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said he was testifying in part because appellant had told him he 

was infected with the HIV virus and "I felt like I just couldn't 

live with myself if that was true and he was going and having sex 

with people and he did, in fact, have the virus." 

 The trial court instructed the jury that "[w]hether or not 

the defendant has AIDS or tested positive for HIV is not the 

issue. This is being offered to show this gentleman's motivation 

for doing what he did." The trial court denied appellant's 

request to testify on surrebuttal that he was not HIV-positive or 

to introduce the newly acquired results of a test conducted by 

the Arlington County Sheriff's Department which established that 

appellant was HIV-negative at the time of his incarceration. 

 Appellant contends the trial court erred in allowing the 

jury to consider any testimony concerning his HIV status because 

its prejudicial effect outweighed its probative value. 

Additionally, appellant argues the cautionary instruction was 

insufficient to overcome the prejudice and the trial court 

compounded the error when it refused to allow him to rebut the 

prejudicial testimony. 

 "'The admissibility of evidence is within the broad 

discretion of the trial court,'" Blaylock v. Commonwealth, 26 Va. 

App. 579, 593, 496 S.E.2d 97, 104 (1998), and juries are presumed 

to follow limiting instructions. See Mills v. Commonwealth, 24 

Va. App. 415, 420, 482 S.E.2d 860, 862 (1997). A judgment will 

not be reversed for the admission of evidence which the court 
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subsequently directs the jury to disregard "unless there is a 

manifest probability that the evidence . . . has been prejudicial 

to the adverse party." Coffey v. Commonwealth, 188 Va. 629, 636, 

51 S.E.2d 215, 218 (1949). Conversely, as an exception to the 

rule, if the prejudicial effect of the impropriety cannot be 

removed by the instructions of the trial court, the defendant is 

entitled to a new trial. See id.; United States v. Ham, 998 F.2d 

1247, 1251-52 (4th Cir. 1993) (evidence of child molestation and 

homosexuality was so inflammatory as to outweigh its value 

providing a motive for murder). 

 In the instant case, the prejudicial effect of Wright's 

statement that appellant was HIV-positive and knowingly put D.T. 

at risk outweighed its probative value in providing a motive for 

Wright's testimony about the rape. Furthermore, the cautionary 

instruction left the jury free to believe appellant had AIDS, and 

the trial court's subsequent denial of appellant's request to put 

on surrebuttal evidence that he was not HIV-positive compounded 

the error. We hold that the admission of the HIV testimony and 

the subsequent exclusion of contrary evidence were error, and the 

cautionary instruction was insufficient to cure the prejudice. 

 For the foregoing reasons, we reverse the convictions and 

remand for further proceedings if the Commonwealth be so 

advised.3

 

 3Appellant also argues the trial court erred in its rulings 

and cautionary instructions concerning allegations of bribery of 

potential witnesses. Because the trial court excluded these 

statements and the error involved the viability of a curative 
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 Reversed and remanded.

 

instruction, this issue is unlikely to arise on remand and we 

need not address it.