Brown v. Commonwealth

COLEMAN, Judge,

concurring in part and dissenting in part.

I disagree with the majority’s holding that the trial court erred by excluding Officer Matthew Berryman’s proffered testimony. In my view, Officer Berryman’s testimony is *236 hearsay and does not come within any recognized hearsay exception. Furthermore, although I concur in the majority’s holding that the trial court erred by refusing to admit Charles Gentry’s testimony that he purportedly overheard a conversation between the victim and defendant before the alleged offense in which the topic of conversation was exchanging cocaine for sex, I believe the error was harmless. Therefore, I would affirm the defendant’s convictions.

I. Officer Berryman’s Testimony

In my opinion, Officer Matthew Berryman’s proffered testimony that the defendant asked him at the police station after being arrested “whether Peggy [the victim] knew he was here” was inadmissible hearsay and the trial judge did not err by so ruling.

Whether an extrajudicial statement is hearsay depends upon the purpose for which it is offered and received into evidence. If the statement is received to prove the truth of its content, then it is hearsay and, in order to be admissible, must come within one of the many established exceptions to the general prohibition against admitting hearsay.

Hanson v. Commonwealth, 14 Va.App. 173, 187 , 416 S.E.2d 14, 22 (1992).

Part of the difficulty in “not-for-truth” situations is due to the fact that often such evidence will have a dual nature; the declaration may indeed be relevant on some matter unrelated to the truth of the content of the statement, and yet the content of the statement may go to the issues of the case as well. See, e.g., Donahue v. Commonwealth, [ 225 Va. 145 , 300 S.E.2d 768 (1983) ]. This is perhaps the situation which creates the greatest dilemma for the courts. In that regard, however, it should be remembered that it is a time-honored principle of evidence law that, in general, if evidence is admissible for any purpose, it is admissible.

Jenkins v. Commonwealth, 22 Va.App. 508, 521 , 471 S.E.2d 785, 791 (1996) (en banc) (quoting 2 Charles E. Friend, The Law of Evidence in Virginia § 18-3, at 95-96 (4th ed.1993) (footnote omitted)).

*237 The majority holds that, by definition, an inquiry or question such as that asked by the defendant is not an assertion and does not constitute hearsay. However, the defendant was saying or asserting, in effect, “I know Peggy personally.” See, e.g., Dutton v. Evans, 400 U.S. 74 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970); Krulewitch v. United States, 336 U.S. 440 , 69 S.Ct. 716 , 93 L.Ed. 790 (1949); United States v. Reynolds, 715 F.2d 99 (1983). See also Laurence H. Tribe, Triangulating Hearsay, 87 Harv. L.Rev. 957, 958 (1974); Ronald J. Bacigal, Implied Hearsay: Defining the Battle Line Between Pragmatism and Theory, 11 S. Ill. U. L.J. 1127 , 1141 (1987). The statement was being offered by the defendant and was relevant only to prove that the defendant personally knew the victim. In order for the jury to infer from the statement that the defendant knew the victim, it would have had to determine the truth or falsity of the implied assertion. The statement’s probative value depended entirely upon the truth of an inferred fact that the statement implied and as such it was hearsay.

The mere fact that the defendant made the statement to Officer Berryman was not relevant for any other purpose and the fact that the statement was made in no way proved the defendant’s relationship with the victim unless the truthfulness of the implied assumptions was accepted. Therefore, in my opinion, the statement was offered to prove the truth of its content and it was inadmissible hearsay. 1

II. Charles Gentry’s Testimony

As to Charles Gentry’s proffered testimony that he purportedly overheard a conversation between the defendant and the victim on an occasion before the alleged crimes about trading crack cocaine for sex, I agree with the majority’s holding that the trial court erred by excluding this testimony. However, the trial judge ruled correctly that the fact the conversation purportedly occurred was admissible to prove that the defen *238 dant and the victim knew one another. The fact that the conversation took place would also have been relevant to impeach the victim if the jury found Gentry’s evidence credible. Nevertheless, the defendant did not seek to introduce that evidence after the trial court ruled that Gentry could not testify as to the nature and particulars of the conversation that he purportedly overheard.

I concur with the majority that Gentry should have been allowed to testify to the nature and content of the alleged conversation to prove that the defendant and victim knew one another and the nature of that relationship. Gentry would have testified that he had seen the victim and the defendant together on two or three occasions before the charged incident and that on one occasion the conversation was about trading sex for cocaine.

“The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v. Commonwealth, 7 Va.App. 10, 16 , 371 S.E.2d 838, 842 (1988). The trial court had discretion to limit the extent to which the witness will be permitted to give the details and particulars of the conversation. However, because the alleged conversation was relevant to prove the nature of the relationship between the victim and the defendant, which fact was material to prove whether the sexual intercourse was consensual or forcible, it was error to preclude Gentry from testifying about the general content of the alleged conversation.

Although I concur in the majority’s holding that the trial court erred by refusing to admit Charles Gentry’s testimony concerning the alleged conversation between the victim and the defendant and its content, I would hold that the error was harmless. “A defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619 , 73 S.Ct. 481, 490 , 97 L.Ed. 593 (1953). Because the defendant conceded that he had sexual intercourse with the victim, the only issue for the jury to decide was whether the intercourse was accomplished through the use of physical force. In my *239 opinion, evidence independent of the victim’s testimony and without regard to her credibility proved overwhelmingly that the defendant used force to accomplish sexual intercourse. See Jenkins v. Commonwealth, 244 Va. 445, 454 , 423 S.E.2d 360, 366 (1992); Goins v. Commonwealth, 218 Va. 285, 288 , 237 S.E.2d 136, 138-39 (1977). Thus, whether the jury believed Gentry that the conversation had taken place or whether the fact of such a conversation would have affected the victim’s credibility would have had no bearing upon the jury’s deciding that the defendant used force to have sexual intercourse with the victim. Therefore, in my opinion, neither the jury’s guilty verdict nor its recommended sentence would have been affected by admitting Charles Gentry’s testimony.

In Virginia, non-constitutional error is harmless “[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.” “[A] fair trial on the merits and substantial justice” are not achieved if an error at trial has affected the verdict____ An error does not affect a verdict if a reviewing court can conclude, without usurping the jury’s fact finding function, that, had the error not occurred, the verdict would have been the same.

Lavinder v. Commonwealth, 12 Va.App. 1003, 1005 , 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678).

Here, overwhelming evidence, independent of the victim’s testimony, proved that the defendant used physical force to accomplish sexual intercourse with the victim. A passing motorist testified that on the night of the alleged crimes she saw the victim “running down the road naked.” The victim stopped the motorist and attempted to enter her car. According to the motorist, the victim was “bloody” and “scared to death.”

When the police arrived, they found the victim in the back seat of the motorist’s car wrapped in a sheet which the motorist had provided. Officer R.L. Shaner testified that the victim’s right eye was “swollen and bruised.”

*240 The police went to the victim’s apartment and found the defendant sleeping. A later analysis of his blood showed that he had consumed cocaine. The police found a chair outside the victim’s apartment placed against the wall below the kitchen window. The window sill into the apartment was bent and the screen to the kitchen window was damaged. Palm prints that were later identified as belonging to the defendant were found on the kitchen sink facing inward from the kitchen window. The defendant’s shoes were on the kitchen sink, and dirt on the shoes appeared to match the dirt in the victim’s backyard. Furniture had been knocked over in the apartment, and blood was found in approximately eight different areas on a bed sheet. Blood was also found on the victim’s t-shirt.

A doctor examined the victim that night and stated that the victim was “clearly nervous and jittery.” The victim’s right eye was bleeding and swollen shut, and she had red marks on her forehead. In addition, she had several scratches on her right front thigh, several red marks on her throat, and dried blood on her head, hair, and perineum. Her nose was bloody, and there was blood under all of her fingernails. Her perineum was slightly swollen and red.

The defendant told the police that he went to the victim’s apartment because he had obtained marijuana for her, and that they did not consume all of the marijuana. However, the police found no marijuana in the apartment, and an analysis of the victim’s blood did not test positive for marijuana. Furthermore, although the analysis of the defendant’s blood tested positive for cocaine, it showed no trace of marijuana. A forensic expert testified that marijuana would be present in a person’s blood for at least twenty-four hours after the last use.

In response to the victim’s claim that she had bitten her attacker’s thumb, the police examined the defendant’s thumb when he was arrested and found bite marks. The bite marks were open and raw and appeared to be very recent.

In light of this overwhelming evidence, I do not believe that the admission of Charles Gentry’s testimony that he claims to *241 have overheard a conversation between the defendant and victim tending to prove that they knew one another and discussed trading cocaine for sex would have affected the jury’s guilty verdict. See Hanson, 14 Va.App. at 191 , 416 S.E.2d at 24 (holding that certain hearsay statements that should have been excluded were nonetheless “inconsequential” in light of the overwhelming evidence of the accused’s guilt).

Likewise, in my opinion the trial court’s error did not affect the defendant’s sentence. The fact that the jury recommended the maximum sentence on all four counts does not require a finding that the error affected the jury’s sentence recommendations; rather, we must evaluate the seriousness, as well as the number, of the errors. See Yager v. Commonwealth, 220 Va. 608, 615 , 260 S.E.2d 251, 256 (1979).

At the sentencing phase in this bifurcated trial, the Commonwealth proved that in 1993 the defendant had been convicted of sodomy and assault and battery; in 1991 he had been convicted of grand larceny and breaking and entering; in 1990 he had been convicted of driving as an habitual offender and possession of cocaine; in 1989 he was convicted of petit larceny and escape; and in 1985 he had been convicted of breaking and entering.

In my opinion, the jury’s sentence recommendations were influenced by the brutality of the crimes against this victim and by the defendant’s record of multiple felony convictions, and the verdict and sentences would not have been affected by the trial court admitting Charles Gentry’s testimony that he purportedly overheard a conversation between the defendant and the victim.

In summary, I disagree with the majority’s holding that the trial court erred by refusing to admit Officer Berryman’s testimony about the defendant’s out-of-court statement. Furthermore, although I agree that it was error to exclude Charles Gentry’s testimony concerning the nature and subject matter of the conversation that he allegedly overheard, I would hold that the error was harmless. Accordingly, I *242 respectfully concur in part and dissent in part and disagree that the convictions should be reversed.

. The defendant ultimately testified that he asked Officer Berryman if "Peggy [knew that he was] ... down at the police station.”