Petition for Writ of Certiorari — Lester B. Lynch, Petitioner v. Beth Cabell, Warden

Corrected copy

VIRGINIA:

In the Supreme Count of Virginia held at the Supreme Court building in the

City. of Richmond on Thuwday the 13th day of February, 2020.

Present: All the Justices

Lester B. Lynch, Appellant,

against Record No. 190048

Circuit Court No. CL17-583

Beth Cabell, Warden,

Sussex II State Prison, Appellee.

Upon an appeal from a judgment

rendered by the Circuit Court of the City of

Norfolk.

Lester B. Lynch (“Lynch”) appeals from a judgment of the Circuit Court of the City of

Norfolk (“circuit court”) that denied his petition for a writ of habeas corpus alleging a violation

of the prosecution’s requirement to disclose potentially exculpatory information as set by Brady

v, Maryland, 373 U.S. 83 (1963). Upon consideration of the record, briefs, and argument of

counsel, the Court is of opinion that the judgment of the circuit court should be affirmed.

I. Facts and Procedural Background

In his habeas petition, Lynch asserted that the Commonwealth violated Brady when it

suppressed the pre-trial video statements of Ronald Scott, Tamika Reid, and Kenneth Parker

(collectively, “the statements”) in which the three witnesses implicated Lynch in a June 2001

home invasion, robbery, and murder. Lynch’s first two jury trials ended as mistrials in October

2002 and March 2003 due to the failure of the juries to reach a unanimous decision. Lynch was

later convicted of first-degree murder, burglary, robbery, and three counts of using a firearm in

the commission of a felony in a May 2003 jury trial. George Anderson represented Lynch

throughout his trials. Lynch’s direct appeals and his first habeas petition were unsuccessful.

In 2016, Lynch filed a motion for preservation of evidence. He later received a June

2001 Norfolk police evidence voucher listing recorded statements from Reid, Parker, and Scott.

He was also notified that the recordings had been destroyed in 2015. Lynch filed the present

0001a

petition for a writ of habeas corpus in 2017, asserting a Brady violation by the Commonwealth

for suppressing the three recorded statements prior to trial. To prove that he had not received the

statements, Lynch relied on a discovery letter from the Commonwealth that contained a

summary of the statement by Reid. The summary provided that

[w]hen [Reid] was interviewed the night the crime occurred, he

initially identified two of the assailants as Gregory Williams . . .

and his brother, Christopher Williams .... He stated he got a

good look at Gregory Williams, and assumed that his brother,

Christopher, was also present. It was later proven that Christopher

Williams could not have been present. He also described a third

assailant who was light-skinned. The victim was shown several

photo lineups, and selected the photographs of Gregory Williams

and Lester Lynch out of those separate lineups,

Lynch also relied on the fact that the discovery letter did not list the statements.

Lynch non-suited the habeas petition in June 2017 and refiled in November 2017. Lynch

attached an affidavit from Anderson that stated he had “reviewed [his] entire file [and] read all

available transcripts.” Anderson “‘state[d] unequivocally that the Commonwealth never advised

[him] of the existence of tape recorded statements.” The Warden moved to dismiss Lynch’s

petition as time-barred and without merit.

Lynch filed a second affidavit from Anderson prior to an evidentiary hearing in the

circuit court. At this time, the Commonwealth had located and provided Lynch with copies of

the transcribed statements. In his second affidavit, Anderson stated that he had reviewed the

statements and could “unequivocally” state he had received none of the information they

contained from the Commonwealth during Lynch’s trials.

During the evidentiary hearing on the present habeas application, Anderson testified that

he had not received the statements or the recordings during Lynch’s criminal trial. He testified

that he would have used inconsistencies in the transcripts when cross-examining the three

witnesses to undermine their identifications of Lynch. Anderson stated that he would likely

recall the statements if he had them at trial and would have used them because one witness

identified someone else as the shooter. However, he also testified that he could not recall any

specifics of Lynch’s trial except for the fact that Lynch was tried three times, that Detective Ford

had been involved in the case, and that Lynch was serving a 68-year sentence.

tO

0002a

Anderson further testified that he “remember[ed] receiving some statements” but he

could not “recall specifically which transcripts from witnesses” he received. Anderson could not

remember any of the witnesses’ names, yet testified that he knew “specifically” that he did not

receive any recorded statements or transcripts from them. Anderson stated that he could not “say

that [he] didn’t receive the information that was in those statements from another source.”

Anderson could not recall the statements, the names of the witnesses, or the information from the

statements, and he admitted that he could not find his file from representing Lynch.

The circuit court ordered the parties to file post-hearing briefs in lieu of closing

argument. The final order states that the Warden filed a post-hearing brief and that Lynch had

replied. The order does not mention Lynch’s August 31, 2018 post-hearing brief.” The court

held that Lynch had “clearly” satisfied the prejudice element of a Brady claim, but had failed to

prove that the Commonwealth suppressed the statements. The court noted that Anderson’s

supplemental affidavit stated:

I have had the opportunity to review the transcripts in their

entirety. With respect to the transcripts pertaining to Kenneth Lee

Parker, Tarnika Reid, and Ronald Scott, 1 unequivocally state that

none of the information contained in said transcripts was ever

produced to me during the course of my representation of [Lynch]

during three separate jury trials.

The court then held:

With regard to this specific claim in his affidavit, Mr. Anderson

was cross-examined by the Assistant Attorney General at the

evidentiary hearing on August 2, 2018. Mr. Anderson was also

questioned by the [cJourt regarding this specific claim that he did

not receive the aforementioned transcripts. In both instances, Mr.

Anderson, under oath, testified that he did receive transcripts of

recorded statements of some witnesses at trial but he could not

* Lynch assigns error to the circuit court’s failure to consider his initial post-hearing brief

based on the fact that the circuit court did not list it among the things it considered in making its

ruling. Lynch seems to imply that had the circuit court considered the brief, its ruling would

have been different. There is simply no evidence to support an assertion that the circuit court did

not consider the evidence. Yarborough v. Commonwealth, 217 Va. 971, 978 (1977) (‘Absent

clear evidence to the contrary in the record, the judgment of a [circuit] court comes to us on

appeal with a presumption that the law was correctly applied to all the facts.”). It is unlikely the

circuit court neglected to read a brief it ordered the parties to file and far more likely that the

failure of the trial court to mention it by name in the order was a mere oversight. In light of our

ruling, we need not address this argument further.

0003a

locate his file prior to preparing the affidavit to determine whether

he had copies of the transcribed police statements of the witnesses

in question. He further testified that he did not recall receiving the

police statements from the Commonwealth, but he could not be

sure the he did NOT receive them. On further questioning by the

[cJourt, Mr. Anderson confirmed that he could not recall whether

he received this specific evidence from the Commonwealth. The

Attorney Genera!’s Post Hearing Brief argues that this is in direct

contradiction to the Commonwealth’s discovery letter from the file

and Mr. Anderson’s own affidavit of July 11, 2018. The [c]ourt

agrees,

The circuit court denied the petition for a writ of habeas corpus. This appeal followed.

Ii. Analysis

Lynch claims that his Fourteenth Amendment rights, and his corresponding rights under

the Constitution of Virginia, were violated by the Commonwealth’s failure to disclose

exculpatory information as required by Brady. Under the Brady rule, the Commonwealth’s

suppression of evidence favorable to the accused and material to either guilt or punishment,

violates due process. Brady, 373 U.S. at 87.

There are three components of a violation of the rule of disclosure

first enunciated in Brady: a) The evidence not disclosed to the

accused “must be favorable to the accused, either because it is

exculpatory,” or because it may be used for impeachment; b) the

evidence not disclosed must have been withheld by the

Commonwealth either willfully or inadvertently; and c) the

accused must have been prejudiced.

Workman y. Commonwealth, 272 Va. 633, 644-45 (2006) (quoting Strickler v. Greene, 527 U.S.

263, 281-82 (1999)).

Lynch had the burden of proof to establish “each of these three components to prevail on

[his] Brady claim.” Commonwealth v. Tuma, 285 Va. 629, 635 (2013) (citing Skinner v. Switzer,

562 U.S. 521, 536 (2011)). “[W]Je give deference io the circuit court’s factual findings and

consider those findings binding upon this Court unless they are plainly wrong or without

evidence to support them.” Lenz v. Warden of Sussex I State Prison, 267 Va. 318, 327 (2004).

The evidence Lynch provided during the evidentiary hearing only showed that the

recordings and/or statements were not included in a discovery letter from the Commonwealth

and were not referenced specifically during trial. The evidence did not support Lynch’s

argument that the Commonwealth suppressed the statements from Anderson and Lynch,

0004a

Anderson could not recall any specific information from Lynch’s criminal trial, yet testified that

he must not have received the statements from Reid, Scott, and Parker because he did not use

them in cross-examination. He stated in an affidavit that he reviewed his “entire file” from

Lynch’s trial, yet later testified during the evidentiary hearing that he was unable to locate the

file. As the circuit court found, “Anderson, under oath, testified that he did receive transcripts of

recorded statements of some witnesses at trial but he could not locate his file prior to preparing

the affidavit to determine whether he had copies of the transcribed police statements of the

witnesses in question.” The court further stated that Anderson “did not recall receiving the

police statements from the Commonwealth, but he could not be sure the he did NOT receive

them.” Finally, the court found that ““Anderson[] repeatedly stated that he could not recall

whether or not he received the statements of Tamika Reid, Ronald Scott, and Kenneth Parker.”

Based on the record before the Court, the circuit court’s judgment was not plainly wrong

or without evidence to support it. The evidence was inconclusive to show that Anderson did not

receive the statements or did not know the information contained in them. The circuit court was

not plainly wrong in finding that Lynch failed to prove a Brady violation because he did not

show “that the Commonwealth suppressed the statements at issue or that [Anderson] did not

even receive the statements.” Accordingly, we affirm the judgment of the circuit court.

This order shall be certified to the Circuit Court of the City of Norfolk.

A Copy,

este: sel i —

0005a

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

LESTER B. LYNCH, #1162173

Petitioner,

Vv. Docket No.: CL17-583

BETH CABELL, WARDEN, SUSSEX II STATE PRISON

Respondent.

ORDER

THIS CAUSE comes before the Court on Petitioner’s Writ of Habeas Corpus. An

evidentiary hearing was held on August 2, 2018. Respondent filed a post hearing brief on

September 17, 2018 and Petitioner filed a reply brief on September 21, 2018. For the reasons that

follow, the Court denies Petitioner’s Writ of Habeas Corpus.

The issue presented is whether the Commonwealth violated Petitioner’s rights under the

Fourteenth Amendment and Article I, Section 11 of the Constitution of Virginia in failing to

provide Brady evidence. Specifically, Petitioner asserts that the Commonwealth failed to

disclose material transcribed witness statements of Ronald Scott, Tamika Reid, and Kenneth

Parker,

Brady v. Maryland establishes that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material either

to guilt or to punishment, irrespective of good faith or bad faith of the prosecution.” 373 U.S. 83,

87 (1963). The Supreme Court has since held that “the duty to disclose such evidence is

applicable even though there has been no request by the accused,” United States v. Aqurs, 427

U.S. 97, 107 (1976). In order to prove a Brady violation, the Petitioner carries the burden of

proving three elements: (1) the evidence at issue must be favorable to the accused, either because

it is exculpatory, or because it is impeaching, (2) that evidence must have been suppressed by the

State, either willfully or inadvertently; and (3) the defendant must be prejudiced. Strickler v.

Greene, 527 U.S. 263, 281-82 (1999).

In the present case, the Court was presented with a habeas petition which emphatically

stated that Petitioner’s original trial counsel, George Anderson, Esq., was not provided with

police interview transcripts of Kenneth Lee Parker, Tamika Reid, and Ronald Scott prior to the

trial, in which he received a 68 year prison sentence. Clearly, under these circumstances, the

Petitioner has satisfied the third element of Brady in that he was clearly prejudiced. However, the

evidence before the Court focuses most directly on the second element in Brady - whether the

evidence was suppressed by the state.

In support of his suppression argument, Petitioner presented an affidavit by Mr.

Anderson, which emphatically states:

0006a

“T have had the opportunity to review the transcripts in their entirety. With respect to the

transcripts pertaining to Kenneth Lee Parker, Tamika Reid, and Ronald Scott, I unequivocally

state that none of the information contained in said transcripts was ever produced to me during

the course of my representation of the Petitioner during three separate jury trials.” Supplemental

Affidavit of George A, Anderson Jr., July 11, 2018.

With regard to this specific claim in his affidavit, Mr. Anderson was cross-examined by

the Assistant Attorney General at the evidentiary hearing on August 2, 2018. Mr. Anderson was

also questioned by the Court regarding this specific claim that he did not receive the

aforementioned transcripts. In both instances, Mr. Anderson, under oath, testified that he did

receive transcripts of recorded statements of some witnesses at trial but he could not locate his

file prior to preparing the affidavit to determine whether he had copies of the transcribed police

statements of the witnesses in question. He further testified that he did not recall receiving the

police statements from the Commonwealth, but he could not be sure the he did NOT receive

them. On further questioning by the Court, Mr. Anderson confirmed that he could not recall

whether he received this specific evidence from the Commonwealth. The Attorney General’s

Post Hearing Brief argues that this is in direct contradiction to the Commonwealth’s discovery

letter from the file and Mr. Anderson’s own affidavit of July 11, 2018.! The Court agrees.

Therefore, the Court finds that Petitioner has failed to show that the evidence was

suppressed by the State. At the evidentiary hearing on August 2, 2018, Petitioner’s trial counsel,

George Anderson, repeatedly stated that he could not recall whether or not he received the

statements of Tamika Reid, Ronald Scott, and Kenneth Parker. As stated above, the Petitioner

has the burden of proving all three elements of Brady violation. Because Petitioner has not

shown that the Commonwealth suppressed the statements at issue or that Defense counsel did not

even receive the statements, the Petitioner has failed to prove that a Brady violation occurred.

Accordingly, the Court DENIES Petitioner’s Writ of Habeas Corpus.

Date: October 11, 2018

Ait Atal

Pa MIGLIOZZI, Jr.,

Judge

' The Commonwealth’s discovery letter stated: “When the victim [Ronald Scott] was interviewed the night the

crime occurred, he initially identified two of the assailants as Gregory Williams (he knew him as “Tyree” or

“Tyreek”) and his brother Christopher Williams (who he knew as “Christopher” or “Q”). He stated he got a good

look at Gregory Williams, and assumed his brother, Christopher, was also present. It was later proven that

Christopher Williams could not have been present. He also described a third assailant who was light skinned. The

victim was shown several photo lineups and selected photographs of Gregory Williams and Lester Lynch out of

those lineups.”

0007a

FELONY TRIAL ORDER - JURY TRIAL —- DAY FOUR

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

Federal Information Processing

Standards Code: 710

Hearing Date: October 7, 2002 Court Reporter: - L. Boyle

Judge: CHARLES D. GRIFFITH, UR. Court Clerk: - WHD/tar

COMMONWEALTH

vs.

LESTER BERNARD LYNCH, JR., DEFENDANT

This case came before the Court for trial of the defendant,

who appeared in person with his attorney, George Anderson. The

Commonwealth was represented by John R. Doyle, III, or his

designee.

The defendant stands indicted for the following offenses:

CASE OFFENSE DESCRIPTION AND OFFENSE VA. CODE

NUMBER INDICATOR (F/M) DATE SECTION

CRO1003499-00 FIRST DEGREE MURDER F 6/9/01 18,2-32

CRO01003499-01 USE OF A FIREARM IN F 6/9/01 18.2-53.1

COMMISSION OF A FELONY

CRO1003499-02 STATUTORY BURGLARY F 6/9/01 18.2-90

CRO1003499-03 USE OF A FIREARM IN F 6/9/01 18.2-53.1

COMMISSION OF A FELONY

CRO1003499-04 ROBBERY F 6/9/01 18.2-58

CRO1003499-05 USE OF A FIREARM IN ¥ 6/9/01 18.2-53.1

COMMISSION OF A FELONY

The Court reconvened at 9:00 a.m. and the jury continued

with their deliberations. They subsequently returned their

verdict in open court in the Foreman, Ina Deloatch stated to the

Court that the jury is unable to reach a unanimous decision on

any of the indictments. A MISTRIAL was declared.

Thereupon the defendant, by counsel, moved the Court for

bond, for reasons stated to the record, which motion having been

fully heard and determined by the Court is denied.

This matter is set for a jury trial on the 2™ day of

December 2002, to which time all parties are to return.

Office of

See tes The defendant was remanded to jail.

7 ,

Circuit Court oa *

Norfolk, Virginia ; The Court certifies that the defendant was at all times

personally present with his attorney.

EXHIBIT

A

tabbier

0008a

Cp tolar 7, Zest ENTER: O AG: [i H.. \

DATE CHARLES 4% GRIFFITH, JR) JUDGE

DEFENDANT IDENTIFICATION:

LESTER BERNARD LYNCH, JR., DEFENDANT

SSN: 226-13-4662 DOB: 1/9/77 Sex: MALE

Office of

ALBERT TEICH, JR.

Clark of the

Circuit Court

Norfolk, Virginia

0009a

FELONY TRIAL ORDER - JURY TRIAL - DAY FIVE

VIRGINIA: IN’THE CIRCUIT COURT OF THE CITY OF NORFOLK

Federal Information Processing

Standards Code: 710

Hearing Date: March 24, 2003 Court Reporter: - L. Boyle

Judge: MARC JACOBSON Court Clerk: - HMC/tar

COMMONWEALTH

vs.

LESTER BERNARD LYNCH, JR., DEFENDANT

This case came before the Court for trial of the defendant,

who appeared in person with his attorney, George Anderson. The

Commonwealth was represented by John R. Doyle, III, or his

designee.

The defendant stands indicted for the following offenses:

CASE OFFENSE DESCRIPTION AND OFFENSE VA. CODE

NUMBER INDICATOR (F/M) DATE SECTION

CRO1003499-00 FIRST DEGREE MURDER F 6/9/01 18.2-32

CRO1003499-01 USE OF A FIREARM IN F 6/9/01 18.2-53.1

COMMISSION OF A FELONY

CRO1003499-02 STATUTORY BURGLARY F 6/9/01 18.2-90

CRO1003499-03 USE OF A FIREARM IN F 6/9/01 18.2-53.1

COMMISSION OF A FELONY

CRO1003499-04 ROBBERY F 6/9/01 18.2-58

CRO1003499-05 USE OF A FIREARM IN F 6/9/01 18.2-53.1

COMMISSION OF A FELONY

The Court reconvened at 9:00 a.m., and the jury continues to

deliberate. They subsequently returned their verdict in open court

in the Foreman, John Vast-Binder stated to the Court that the jury

is unable to reach a unanimous decision on any of the indictments

and the Court declares a MISTRIAL. The jury was dismissed.

Thereupon the defendant, by counsel, moved the Court to set

bond, for reasons stated to the record, which motion having been

fully heard and determined by the Court is denied.

This matter is continued until the 28™ day of April 2003,

Otfice of to which time all parties are to return.

ALBERT TEICH, JR.

Clerk of the to

Circuit Court The defendant was remanded to jail.

Nortolk, Virginia

The Court certifies that the defendant was at all times

personally present with his attorney.

EXHIBIT

Oo

taddies”

0010a

ca

Ottice of

Clerk of the

Circuit Court

Norlolk, Virginia

ALBERT TEICH, JR.

O e

she elo ENTER< Z

DATE MARC JACO , JUDGE

DEFENDANT IDENTIFICATION:

LESTER BERNARD LYNCH, JR., DEFENDANT

SSN: 226-13-4662 DOB: 1/9/77 Sex: MALE

0011a

FELONY TRIAL ORDER - JURY TRIAL —- DAY ONE

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

Federal Information Proceasing

Standards Code: 710

Hearing Date: April 29, 2003 Court Reporter: - S. Feehery

Judge: CHARLES E. POSTON Court Clerk: - MQS/tar

COMMONWEALTH

vs.

LESTER BERNARD LYNCH, JR., DEFENDANT

This case came before the Court for trial of the defendant,

who appeared in person with his attorney, George Anderson. The

Commonwealth was represented by John R. Doyle, fIII, or his

designee.

The defendant stands indicted for the following offenses:

CASE OFFENSE DESCRIPTION AND OFFENSE VA. CODE

NUMBER INDICATOR (F/M) DATE SECTION

CRO1003499-12 FIRST DEGREE MURDER F 6/9/02 18.2-32

CRO1003499-13 USE OF A FIREARM IN F 6/9/01 18.2-53.1

COMMISSION OF A FELONY

CRO1003499-14 STATUTORY BURGLARY F 6/9/01 18.2-90

CRO1003499-15 USE OF A FIREARM IN F 6/9/01 18.2-53.1

COMMISSION OF A FELONY

CRO1003499-16 ROBBERY F 6/9/01 18.2-58

CRO1003499-17 USE OF A FIREARM IN F 6/9/01 18.2-53.1

COMMISSION OF A FELONY

Thereupon the defendant was arraigned and after private

consultation with his attorney, plead not guilty to First Degree

Murder as charged in Indictment #1, Use of a Firearm in Commission

of a Felony as charged in Indictments #2, #4 and #6, Statutory

Burglary as charged in Indictment #3 and Robbery as charged in

Indictment #5, which pleas were tendered by the defendant, in

person. After being advised by the Court of his right to trial

either by jury or by the Court, and after consultation with

counsel, the defendant did not waive his right to trial by jury.

The Court then impaneled twenty qualified jurors, free from

exception for the trial of the defendant. The Attorney for the

Commonwealth and the attorney for the defendant each alternately

Otfice of exercised their rights to strike the names of four veniremen from

ALBERT TEICH, JR the panel, as provided by law, and the remaining twelve jurors,

Clerk of the

constituting the jury for the trial of the defendant, were duly

ircuit Cour

Grreuneeu sworn/alternate seated.

Norlolk, Virginia

After opening statements, the Court and jury commenced

hearing the evidence presented by the Commonwealth, and having

EXHIBIT

0012a

heard part of the aforesaid evidence, the Court adjourned at 4:15

p.m. until the 30™ day of April 2003, to which time all’parties

are to return.

The defendant was remanded to jail.

The Court certifies that the def ant was at all times

personally present with his attorne

TOY a, <fleeeBe

DATE poses E. POSTON, JUDGE .

DEFENDANT IDENTIFICATION:

LESTER BERNARD LYNCH, JR., DEFENDANT

SSN: 226-13-4662 DOB: 1/9/77 Sex: MALE

Ottice of

ALBERT TEICH, JA,

Clerk of the

Circuit Count

Norfolk, Virginia

0013a

y SENTENCING ORDER

1) VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

FEDERAL INFORMATION PROCESSING

STANDARDS CODE: 710

Hearing Date: December 12, 2003 Court Reporter: - S. Feehery

c\X Judge: CHARLES E. POSTON Court Clerk: - HMH/tar

COMMONWEALTH OF VIRGINIA

Vv.

LESTER BERNARD LYNCH, JR., DEFENDANT

This case came before the Court for sentencing of the

defendant, -who appeared in person with his attorney, George

Anderson. The Commonwealth was represented by John R. Doyle, III,

or his designee.

On May 1, 2003 the defendant was found guilty by jury of the

following offense (s) :

CASE OFFENSE DESCRIPTION AND OFFENSE VA. CODE

NUMBER INDICATOR (F/M) DATE SECTION

CRO1003499-12 FIRST DEGREE MURDER

CRO01003499-13 USE OF A FIREARM IN

COMMISSION OF A FELONY

CRO1003499-14 STATUTORY BURGLARY F 6/9/01 18.2-90

CRO1003499-15 USE OF A FIREARM IN F 6/9/01 18.2-53.1

COMMISSION OF A FELONY

CRO1003499-16 ROBBERY

CRO1003499-17 USE OF A FIREARM IN

COMMISSION OF A FELONY

6/9/01 18.2-32

6/9/01 18.2-53.1

ty hy

6/9/01 18.2-58

6/9/01 18.2-53.1

ce

The presentence report was considered and is ordered filed

as a part of the record in this case in accordance with the

provisions of Code Section 19.2-299.

Pursuant to the provisions of Code Section 19.2-298.01, the

Court has considered and reviewed the applicable discretionary

sentencing guidelines and the guidelines worksheets. The

sentencing guidelines worksheets and the written explanation of

any departure from the guidelines are ordered filed as a part of

the record in this case.

Before pronouncing the sentence, the Court inquired if the

ole defendant desired to make a statement and if the defendant

ALBERT TEICH, JR. desired to advance any reason why judgment should not he

Clark of the

Circuit Court pronounced.

Norlalk, Virginia

MDL-ASTR.ORD

0014a

The Court upholds the jury recommendation and SENTENCES the

defendant to:

Incarceration with the Virginia Department of Corrections. for the

term of: 30 years for Indictment #1, 5 years for Indictment #2,

20 years for Indictment #3, 3 years for Indictment #4, 5 years

for Indictment #5 and 5 years for Indictment #6. The total

sentence imposed is 68 years.

These sentences shall run consecutively with all other

sentences.

Post-release supervision. The defendant shall be subject toa

period of post-release supervision of 6 months.

Costs. As a condition of probation, the defendant shall pay

fines/or court costs of $8,172.00 by December 12, 2003, and

judgment be entered therein.

Credit for time served. The defendant shall be given credit for

time spent in confinement while awaiting trial pursuant to Code

Section 53.1-187.

The defendant, by counsel, advised the Court that the defendant

desires to appeal the judgment rendered, and accordingly the

Court suspends execution of the sentence for a period of 30 days,

until the said appeal is acted upon.

And the Court appoints a designee from the Office of the Public

Defender, an able and competent atto -atflaw to represent the

ay in said by

ENTER :

a cen Ss E. i. JUDGE

DEFENDANT IDENTIFICATION:

LESTER BERNARD LYNCH, JR., DEFENDANT

SSN: 226-13-4662 DOB: 1/9/77 Sex: MALE

SENTENCING SUMMARY:

TOTAL SENTENCE IMPOSED: 68 YEARS

TOTAL SENTENCE SUSPENDED: NONE

Oftica of

ALBERT TEICH, JR.

Clerk of the

Circult Court

Norfolk, Virginia

MDL-ASTR.ORD

0015a

@ LexisNexis®

Page |

LESTER BERNARD LYNCH, JR. v. COMMONWEALTH OF VIRGINIA

Record No. 0107-04-1

COURT OF APPEALS OF VIRGINIA

46 Va. App. 342; 617 S.E.2d 399; 2005 Va. App. LEXIS 310

August 16, 2005, Decided

SUBSEQUENT HISTORY: Affirmed by Lynch v.

Commonwealth, 2006 Va. LEXIS 68 (Va., June 8, 2006)

PRIOR HISTORY: [***1] FROM THE CIR-

CUIT COURT OF THE CITY OF NORFOLK. Charles

E, Poston, Judge.

COUNSEL: L. Steven Emmert (Sykes, Bourdon, Ahern

& Levy, P. C., on briefs), for appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W.

Kilgore, Attorney General, on brief), for appellee.

JUDGES: Present: Judges Benton, Humphreys and

Clements. Benton, J., dissenting.

OPINION BY: ROBERT J. HUMPHREYS

OPINION

[**400] [*345] OPINION BY

JUDGE ROBERT J. HUMPHREYS

Appellant Lester B. Lynch ("Lynch") appeals his

convictions, following a jury trial, for first-degree murder, statutory burglary, robbery, and three counts of using a firearm in the commission of a felony. On appeal,

Lynch contends that the trial court erroneously admitted

an out-of-court statenient under the adoptive admission

exception to the hearsay rule. For the reasons that follow,

we disagree, and affirm his convictions.

]. BACKGROUND

Under familiar principles of appellate review, we

examine the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom. Gonzales v. Commonwealth,

43 Va. App. 375, 378, 611 S.E. 2d 616, 617 (2005) (en

banc). So viewed, the evidence in this case establishes

[***2] the following.

On June 9, 2001, Belinda Scott was shot and killed

inside her home by Lynch, "Tyreke" Williams, and a

third, unidentified man. After the shooting, Lynch and

Tyreke "burst" into a bedroom occupied by Belinda's

son, Ronald, and his friend, Tamika Reid. The third man

remained outside the bedroom door. Tyreke told Ronald

to "get on his knees," pointed a gun [*346] at him, and

told Tamika "not to move." Tyreke then repeatedly hit

Ronald on the head with the gun and took some money

out of Ronald's pockets, while Lynch removed heroin

and money from a table in the room. The third man

eventually told Tyreke and Lynch, "Let's get [**401]

out of here." The three men then “ran out of the house.”

Earlier that afternoon, Kenneth Parker was "hanging

out" at Tyreke's house with Christopher, Tyreke's brother. Kenneth saw Lynch drive up to the house in a black

Acura. Tyreke was in the passenger seat. Lynch got out

of the car to talk to Christopher, and Tyreke went across

the street to get a gun. After he returned, Tyreke agreed

to give Kenneth a ride home. Kenneth then got into the

Acura with Lynch, Tyreke, and the unidentified third

man. However, when Kenneth said that he needed to

cross the Campostella [***3] Bridge, Lynch told him

that they were going on a "sting," and they needed to

"take care of [that] first." Thus, Kenneth got out of the

car, and Lynch told him that they would return in about

thirty minutes.

When the three men returned to Tyreke's house,

Kenneth noticed that Tyreke was wearing a different

shirt and had smatbloodsiainssormlris=ciothing, Tyreke

carried something into his house wrapped,

he had been wearing before the murder

0016a

EXHIBIT

Page 2

46 Va. App. 342, *; 617 S.E.2d 399, **;

2005 Va. App. LEXIS 310, ***

lowed. After entering the house, Tyreke went directly to

an upstairs bathroom, and Kenneth sat in the upstairs

den. Lynch did not enter the house immediately, but remained in the driveway speaking to the third man, who

was "looking down at the ground like something was

really bothering him."

When Tyreke left the bathroom, he knocked on

Christopher's door and told him that "they had just shot a

woman." Kenneth joined the conversation and asked

Tyreke, "man, what you done got yourself into? You-all

done shot a woman?" Tyreke responded, "yeah." Kenneth asked, “where was you-all at?” Tyreke responded,

"we went to Little Ronald's house .. . to go get him.”

Kenneth then asked, “why would you-all go in and try to

do something [***4] and rob him or whatever [*347]

when he cool with everybody?" Tyreke then said that he

"don't care who I get" because "my light's due, my rent

due, my girl getting ready to leave," and he was "going

to get put out."

As Kenneth, Christopher, and Tyreke were discussing whether the "skinny lady" who had been shot was

Ronald's mother or sister, Kenneth heard someone

climbing the stairs. As Lynch reached the top of the

stairs, he asked Tyreke "why he was telling [Kenneth and

Christopher] what they had just done." Although Tyreke

told Lynch that Kenneth was "cool" and would not tell

anyone, Kenneth said he would have "nothing to do with

it," and left the house. Kenneth called Ronald's cellular

phone and spoke with Tamika, who was still hysterical

over the events she had just witnessed.

On September 5, 2001, a grand jury indicted Lynch

for "feloniously [] killing and murdering Belinda Scott,"

in violation of Code §§ /8.2-32 and /8.2-/0, "using, attempting to use, or displaying a firearm while committing . . . murder," in violation of Code § /8.2-53./,

"breaking and entering in the nighttime while armed with

a deadly [***5] weapon, the dwelling house of Belinda

Scott, with intent to commit robbery,” in violation of

Code § 18.2-90, "using, attempting to use, or displaying

a firearm while committing . . . armed burglary,” in violation of Code § 18.2-53.], "robbing Ronald Scott of

U.S. currency, having some value," in violation of Code

§ 18.2-58, and, “using, attempting to use, or displaying a

firearm while committing . . . robbery," in violation of

Code § 18.2-53./.

Before Kenneth testified at trial, the Commonwealth

informed the court that it intended to introduce the

statement, "Why you telling them what we just did?”

under the adoptive admission exception to the hearsay

rule. The parties "argued the matter in chambers," and,

based on the Commonwealth's proffer, the court ruled

that the statement was admissible.

The jury found Lynch guilty of al] six counts as

charged in the indictments, and the court sentenced

Lynch, in accordance with the jury's recommendation, to

thirty years for first-degree [*348] murder, twenty

years for statutory burglary, five years for robbery, five

years for use of a firearm (***6] while committing

murder, five years for use of a firearm while committing

robbery, and three years for use of a firearm while committing burglary. The court set the sentences to run consecutively, [**402] resulting in a total active sentence

of sixty-eight years in prison. Lynch appeals.

I]. ANALYSIS

On appeal, Lynch contends that the trial court erroneously admitted the statement, "Why you telling them

what we just did?" coupled with the substance of the

preceding conversation between Kenneth, Tyreke, and

Christopher, under the adoptive admission exception to

the hearsay rule, reasoning that the evidence was insufficient to demonstrate that Lynch had overheard enough of

the conversation to understand what was being discussed. For the reasons that follow, we disagree.

A.

"The admissibility of evidence is within the broad

discretion of the trial court, and a ruling wil] not be disturbed on appeal in the absence of an abuse of discretion.

™" Gonzales, 45 Va. App. at 380, 61] SE. 2d at 618

(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E. 2d 838, 842, 3 Va. Law Rep, 356 (1988)). "However, ‘by definition, when the trial court makes an error of

law, an abuse of discretion [***7] occurs. " Id. (quoting Bass v. Commomvealth, 31 Va. App. 373, 382, 523

SE. 2d 534, 539 (2000).

Hearsay evidence is inadmissible unless it falls

within one of the recognized exceptions to the hearsay

rule. Clay v. Commonwealth, 33 Va. App. 96, 104, 531

S.E. 2d 623, 626-27 (2000) (en banc); see also West v.

Commonwealth, 12 Va. App. 906, 909, 407 S.E. 2d 22,

23, 8 Ka. Law Rep. 160 (1991). And, if the admissibility

of a hearsay statement is conditioned upon a finding of

certain predicate facts, the party seeking to admit the

hearsay evidence must prove, by a preponderance of the

evidence, each of those qualifying factors. See Rabeiro v.

Commonwealth, 10 Va. App. 61, 64-65, 389 S.E. 2d 731,

733, 6 a. Law Rep. 1762 (1990) ("On factual [*349]

issues relating to the admissibility of evidence, the burden of persuasion is proof by a preponderance of the

evidence."); see also Doe v. Thomas, 227 Va. 466, 472,

318 S.E. 2d 382, 386 (1984) (noting that the party seeking to have a hearsay declaration admitted "must clearly

show" that the evidence falls within an exception to the

hearsay rule); Neal v. Commonwealth, 15 Va. App. 416,

420-21, 425 S.E. 24 521, 524, 9 Va. Law Rep. 614 (1992)

21

0017a

Page 3

46 Va. App. 342, *; 617 S.E.2d 399, **;

2005 Va. App. LEXIS 310, ***

[***8] ("The party seeking to rely upon an exception to

the hearsay rule has the burden of establishing admissibility."). ' These "antecedent facts" must be "determined

by the court, and not by the jury." Mullins v. Commonwealth, 113 Va. 787, 791, 73 S.E. 193, 195-96 (1912)

(internal quotations omitted); see also Rabeiro, 10 Va.

App. at 64, 389 S.E. 2d at 732 ("The factual determinations which are necessary predicates to rulings on the

admissibility of evidence and the purposes for which it is

admitted are for the trial judge and not the jury.").

] Lynch, however, argues that the "clearly

show" Janguage from Doe implies that the proponent of a hearsay statement must prove, by

clear and convincing evidence, each of the elements needed for application of an exception to

the hearsay rule. Neither this Court nor the Virginia Supreme Court has ever applied a clear and

convincing standard of proof where the proponent of a statement seeks to admit that evidence

under an exception to the hearsay rule. Rather,

we interpret the "clearly show" language as

merely restating the general proposition that the

proponent of a hearsay statement has the burden

of proving its admissibility, including proving, by

a preponderance of the evidence, each of the facts

necessary to support application of the appropriate hearsay exception.

[***9] When deciding whether the proponent of

the hearsay statement has sustained his burden of proving the necessary predicate facts, “the trial court, acting

as a fact finder, must evaluate the credibility of the witnesses, resolve the conflicts in their testimony and weigh

the evidence as a whole." Albert v. Commonwealth, 2 Va.

App. 734, 738, 347 S.E. 2d 534, 536, 3 Va. Law Rep. 297

(1986). Thus, the trial court's determination that these

factual prerequisites have been met "'is to be given the

same weight by the appellate court as is accorded the

finding of fact by a jury.'" Id. (quoting Witt v. Commonwealth, 215 Va. 670, 674, 212 SE. 2d 293, 296-97

(1975); see also Rabeiro, 10 Va. App. at 64, 389 S.E. 2d

at 733.

{*350] Accordingly, when reviewing a trial court's

decision to admit a statement under an exception to the

hearsay rule, this [**403] Court must first decide

whether the evidence supports the trial court's conclusion

that the proponent of the statement established each of

the factual prerequisites for application of the designated

hearsay exception. If those factual findings are plainly

wrong or without evidence to support them, we will reverse the trial [***10] court because it abused its discretion, as a matter of law, in determining that the hearsay exception applied. See Norfolk & Western Ry. Co. v.

Puryear, 250 Va. 559, 563, 463 S.E. 2d 442, 444 (1993)

("A trial court has no discretion to admit clearly inadmissible evidence because admissibility of evidence depends not upon the discretion of the court but upon

sound legal principles." (internal quotations omitted)). If

the trial court's factual findings are supported by the evidence, this Court must then determine whether the trial

court abused its discretion by admitting the otherwise

admissible hearsay statement: See, e.g., Clay, 33 Va.

App. at 107, 531 SE. 2d at 628 (after determining that

the challenged statement fell within the state of mind

exception to the hearsay rule, noting that "Wwe must now

determine whether .. . the trial court abused its discretion

in judging” that "the prejudicial effect of such evidence

outweighed its probative value").

Under the circumstances of this case, we hold that

the trial court did not clearly err in holding that the

Commonwealth carried its burden of proving the required antecedent facts for application [***11] of the

adoptive admission exception to the hearsay rule. And,

because Lynch has not advanced any other argument in

support of his contention that the tria] court erred, we

hold that the court did not abuse its discretion by admitting the statement into evidence.

B.

One of the established exceptions to the hearsay rule

permits the introduction of an out-of-court statement tliat

qualifies as an "adoptive admission." An adoptive admission may [*351] occur either "expressly (eg., by

oral or written statements of the party) or impliedly (e.2.,

by conduct of the party)." Charles E. Friend, The Law of

Evidence in Virginia § 18-49(c) (6th ed. 2003); see also

United States v. Robinson, 275 F.3d 371, 383 (4th Cir.

2001) ("A party may manifest adoption of a statement in

any number of ways, including [through] words, conduct, or silence."); 294 Am, Jur. 2d Evid. § 797 (2004)

("Adoption or acquiescence may be manifested in any

appropriate manner," incJuding when the party "expressly agrees to or concurs in an oral statement made by another,” "hears the statement and later on essentially repeats it,” "utters an acceptance or builds upon [***]2]

the assertions of another," "replies by way of rebuttal to

some spécific points raised by another, but ignores further points which he or she has heard the other make," or

"reads and signs a written statement prepared by another.").

The Commonwealth contends that the adoptive admission in this case is analogous to an adoptive admission by silence. Jn Virginia, it is well established that "an

admission by silence is .. . a form of adoptive admission." Friend, supra, at § 18-49(e). ? However, the "very

distinct requirements” * [**#404] needed to establish

admissibility of an adoptive admission [*352] by si-~

lence are not directly applicable in the context of other

22

0018a

Page 4

46 Va. App. 342, *; 617 S.E.2d 399, **;

2005 Va. App. LEXIS 310, ***

forms of adaptive admissions. See id. That is, the specific antecedent factors that must be proven to admit an

adoptive admission by silence stem from the "uncertainty

which attends interpreting a person's silence as an implied admission of the statement made." 294 Am. Jur. 2d

Evid. § 799 (2004). When an individual is not silent but,

instead, affirmatively responds to a statement, those

same concerns are not implicated.

2 As noted by the Virginia Supreme Court,

when a statement tending to incriminate one accused of committing a crime is made in his presence and hearing and such slatement is not denied, contradicted,

or objected to by him, both the

statement and the fact of his failure to deny are admissible in a

criminal proceeding against him,

as evidence of his acquiescence in

its truth.

James v. Commonwealth, 192 Va. 713, 718, 66

SE. 2d 513, 516 (1951); see also Tillman v.

Commonwealth, 185 Va. 46, 56, 37 SE. 2d 768,

773 (1946) ("It is well settled that statements

made in the presence and hearing of another, to

which he does not reply, are admissible against

him as tacit admissions of their truth or accuracy,

when such statements are made under circumstances naturally calling for reply if their truth is

not intended to be admitted."). "This principle

rests upon that universal rule of human conduct

which prompts one to repel an unfounded imputation or claim." Tillman, 185 Va. at 56, 37 SE.

2d at 773; see also Sanders v. Newsome, 179 Ka.

582, 592, 19 S.E. 2d 883, 887 (1942).

[***13]

3 Ifa party seeks to prove an adoptive admission by silence, the proponent of the statement

must establish the following factual conditions:

(1) the statement must have been heard by the

party alleged to have acquiesced in the statement,

(2) the party must have understood that "he was

being accused of complicity in a crime,” (3) "the

circumstances under which the statement was

made must have been such as would afford him

an opportunity to deny or object," and (4) “the

statement must have been such, and made under

such circumstances, as would naturally call for a

reply." Owens v. Commonwealth, 186 Va. 689,

699, 43 SE. 2d 895, 899 (1947) (internal quotations omitted); accord Dowden v. Common-

wealth, 260 Va. 459, 469, 536 SE. 2d 437, 442

(2000); Baughan vy. Commomwvealth, 206 Va. 28,

32, 141 SE. 2d 750, 752 (1965); Strohecker v.

Commonwealth, 23 Va. App. 242, 232, 475 S.E.

2d 844, 849 (1996). Overall, the "essential inquiry in each case is whether," under the totality

of the circumstances, "a reasonable person would

have denied" the statement. Knick v. Commonwealth, 13 Va. App. 103, 107, 42] S.E. 2d 479,

481, 9 Va. Law Rep. 342 (1992); see also Weinbender v. Commonwealth, 12 Va. App. 323, 325,

398 S.E. 2d 106, 107, 7 Va. Law Rep. 1028

(7990).

(***14] Thus, if the individual alleged to have

adopted a statement manifests his assent to a statement

by some form of conduct other than silence, the inquiry

changes slightly. Under those circumstances, the trial

court need only determine whether, in light of the resulting verbal or non-verbal response, ™' there are sufficient

foundational facts from which the jury could infer that

the defendant heard, understood, and acquiesced in the

statement. '" Robinson, 275 F.3d at 383 (quoting United

States v. Jinadu, 98 F.3d 239, 244 (6th Cir. 1996)).

ie

On appeal, Lynch argues that the statement, "Why

you telling them what we just did?," coupled with the

other partiés' statements discussing the murder, does not

fall [*353] within the adoptive admission exception to

the hearsay rule because there is no evidence that Lynch

overheard the entire conversation between Kenneth,

Christopher, and Tyreke. At the outset, however, we

must clarify that this case does not involve an adoptive

admission by silence. The evidence does not show that,

while Kenneth, Christopher, and Tyreke were discussing

the murder, Lynch approached the conversation and remained silent. Rather, he joined [***15] the conversation and affirmatively statéd, "Why you telling them

what we just did?" Thus, this is not a case where the ‘individual alleged to have adopted a statement "failed to

reply" to a direct or indirect accusation of wrongdoing. *

Rather than requesting introduction of a statement and

Lynch's resulting silence, the Commonwealth sought to

introduce a statement and Lynch's resulting verbal response. As a result, the four factors set forth in Owens

are not directly applicable under the circumstances of

this case.

4 "For the adoptive admission exception to apply, a direct accusation is not needed." Strohecker, 23 Va. App. at 254, 475 S.E. 2d at 830.

We must determine, rather, whether the Commonwealth presented sufficient foundational evidence from

which the trial court could infer that Lynch heard, under-

23

0019a

Page 5

46 Va. App. 342, *; 617 S.E.2d 399, **;

2005 Va. App. LEXIS 310, ***

stood, and agreed with the substance of the conversation

between Kenneth, Christopher, and Tyreke. Under the

circumstances of this case, we hold that the trial court

could reasonably [***]6] have inferred that Lynch

heard enough of the conversation to know that the other

men were discussing the murder, understood that he had

been implicated in that murder, and, by his verbal statement, manifested his agreement with the fact that he had

been involved in the murder.

First, the Commonwealth presented sufficient evidence from which it could be inferred that Lynch overheard at least a portion of the conversation between

Kenneth, Christopher, and Tyreke, Although Lynch was

outside when the conversation began, Kenneth testified

that, while they were discussing the "skinny woman," he

heard Lynch coming up the stairs. Lynch then entered

the conversation and asked, "Why you [*354] telling

them what we just did?" This conversation occurred in

Tyreke's home, immediately after he and Lynch returned

from the crime scene. Considering the context, time, and

location of the discussion, the trial court could reasonably have inferred that Lynch heard enough of the conversation to [**405] understand that the other men

were talking about the murder in which he had just participated. See Weinbender v. Commonwealth, 12 Va.

App. 323, 326, 398 SE. 2d 106, 108, 7 Va. Law Rep.

1028 (1990) (affirming admission [***17] of hearsay

statement where "the tria] judge could have inferred that

the defendant heard the statement"); Stunipf v. Conmonwealth, 8 Va. App. 200, 206, 379 S.E. 2d 480, 484, 5

Va, Law Rep. 2524 (1989) ("The record shows that [the

declarant's] statements were made with the

knowledge and consent of [the defendant], who, dy reasonable inference, was with [the declarant] when she

made them,"); see also United States v. Tedder, 801 F.2d

1437, 1451 (4th Cir. 1986) (where jury heard "conflicting testimony about the conditions under which [an accomplice] made his incriminating statements,” including

testimony that the defendant "was within earshot" but

about "ten feet away," "the jury was entitled to conclude

that [the defendant] heard and adopted [the accomplice's]

account"); State v. Thompson, 332 N.C. 204, 420 S.E. 2d

395, 402 (N. C. 1992) (rejecting argument that the "person making the statement [must] be in the physica! presence of the defendant, concluding instead that “the proper focus is on the defendant's ability to hear and understand the statement being made").

Second, the trial court could reasonably have inferred that Lynch [***18] understood not only the nature of the conversation, but also the fact that he had

been implicated in the shooting. Specifically, Lynch entered the conversation and immediately asked, "Why you

telling them what we just did?" Considering Lynch's use

of the word "we," the trial court could reasonably have

concluded that Lynch understood not only that the murder was being discussed, but that he, too, had been fingered as a participant in the crime.

Third, the trial court could reasonably have inferred

that Lynch's statement, "Why you telling them what we

just did?," [*355] was sufficient to indicate his agrecment that he had been involved in the murder, Again,

Lynch's use of the word "We" is telling. Rather than stating, "Why you telling them what you just did,” Lynch

asked, "Why you telling them what we just did?" Ordinarily, an individual accused of murder would take reasonable steps to deny his participation in that murder.

Here, however, Lynch did not merely fail to deny his

participation in the shooting - he, by his own words, affirmatively implicated himself. Thus, the trial court could

reasonably have concluded that Lynch's statement was

sufficient to indicate his agreement [***19] that he had

been involved in the murder. See, ¢.g., Robinson, 275

F.2d at 383 (affirming trial court's admission of a conversation between the defendants where the parties discussed a murder they had just committed, noting that,

"had either [party] disagreed with a statement by the other, he would have made his disagreement known"); see

also United States v. Handy, 668 F.2d 407, 408 (8th Cir.

/982) (holding that defendant's interjection, "Yes, we

did,” during co-conspirator's discussion of an attempted

murder was an adoptive admission); cf. Clemmer v.

Commonwealth, 208 Va. 661, 665, 159 S.E. 2d 664, 667

(1968) (holding that, where an officer asked the defendant "about his drinking," and the defendant responded

that it "wasn't any of [the officer's] business what he had

been drinking,” this statement was "not such that one can

infer from it a tacit admission by defendant that he had

been drinking, or was under the influence of alcohol,"

reasoning that the defendant's "answer that it was none of

the trooper’s business what he had been drinking can be

interpreted as an insolent answer to an officer of the Jaw,

but it cannot (***20] be construed as a tacit admission

that defendant had been drinking alcohol or was under

the influence of alcohol").

Finally, we note that any residual doubt as to whether Lynch agreed that he had participated in the murder

went to the weight of the evidence, not its admissibility.

See Thompson, 420 S.£. 2d at 403 ("A response which is

not the equivalent of a denial may indicate acquiescence

and be considered by the jury for what it is worth."); sec

also United States v. [*356] Tocco, 135 F.3d 116,

128-29 (2d Cir. 1998) (holding that defendant's nod

when witness told him that defendant's accomplice was

talking about their involvement in an arson constituted

an adoptive admission, reasoning that the statement was

"exactly the type of statement that an innocent person,

under these circumstances, [**406} would normally

24

0020a

46 Va. App. 342, *; 617 S.E.2d 399, **;

2005 Va. App. LEXIS 310, ***

deny," but that the meaning of the nod was "ultimately a

question for the jury to assess").

III. CONCLUSION

For these reasons, we hold that the trial court did not

err in admitting Lynch's statement and the substance of

the preceding conversation under the adoptive admission

exception to the hearsay rule. Accordingly, we affirm his

convictions. [***21]}

Affirmed.

DISSENT BY: Benton

DISSENT

Benton, J., dissenting.

"As a general rule, hearsay evidence is incompetent

and inadmissible." Neal v. Commonwealth, 13 Va. App.

416, 420, 425 S.E. 2d 52], 524, 9 Va. Law Rep. 614

(7992). Furthermore, a codefendant’s out-of-court statement implicating a defendant in a crime is a category of

hearsay that is presumptively and inherently unreliable.

Lilly y, Virginia, 527 U.S. 116, 131, 144 L. Ed. 2d 117,

119 S. Ct. 1887 (£999). \n view of these principles, “[a]

party who relies upon an exception to an exclusionary

tule of evidence bears the burden of establishing admissibility." Doe v. Thomas, 227 Va. 466, 472, 318 S.E. 2d

382, 386 (1984).

At a pretrial hearing, the trial judge considered

Kenneth Parker's testimony as proffered. Parker testified

that Gregory Williams, Lester B. Lynch, and a "younger

fellow" arrived at Williams's brother's residence in the

evening. Williams exited the car and rang the doorbell.

After Williams's brother came downstairs and opened the

door, Williams and his brother went upstairs followed by

Parker, Lynch was outside the building talking to the

"younger fellow.”

Based on Parker's proffered [***22] testimony, the

trial judge ruled that statements Williams made to his

brother and Parker [*357] inside the residence the day

the killing occurred were admissible. In pertinent part,

Parker's testimony established the followmg:

A. When | followed [Williams] upstairs, ] went to the den. He went to his

brother's room.

Q. So you weren't in the hallway

then; is that correct?

A. Not at that time. I didn't go into

the hallway until [Williams's] brother . . .

came out of the room. And when he came

out of the room, I went to the bathroom.

When I went to the bathroom, I overheard

[Williams] telling [his brother] what had

happened.

Q. So this conversation took place in

the bedroom?

A. No, it took place in the hallway.

His brother came into the hallway because

his girlfriend was in the room. She was

going into labor.

Q. At this time [Williams] tells his

brother what has happened; is that correct?

A. The little young boy downstairs is

trigger happy.

Q. My question is he told his brother

what had happened?

A. Yeah.

Q. At that point you don't see Mr.

Lynch, do you?

A. No, not at that time. He didn't

come up the stairs right then. [***23]

He didn't come up the stairs until ....

He didn't come up the stairs --like

when | got in the conversation like after ]

overheard [Williams], what he was telling

his brother, that's when I got in the conversation, and that's when [Lynch] came

up the stairs.

Q. In fact, you've testified before you

don't know what he heard, do you?

A. What who heard?

Q. [Lynch].

A. I can't hear for him. You know

what J] am saying? Only thing } can do is

tell you what [Lynch] said. As far as what

he heard, them his ears. ] can't tell you

exactly what he heard. Only thing 1] know

is [Lynch] asked [Williams] [*358]

why was he telling {Williams's brother]

what they had just done.

KAKA RA x

A. Yeah. ] mean, I didn't put the exact point of time, whether he came when

Page 6

25

0021a

ST Or era

&

rar

46 Va. App. 342, *; 617 S.E.2d 399, **;

2005 Va. App. LEXIS 310, ***

[Williams] was talking or whether he

came when | was talking. | didn’t say that

in my testimony at [Williams's} trial. I'm

telling you [Lynch] came upstairs when

we [**407] was talking and he asked

[Williams] why was he telling us that. At

what point what he heard or whether J

was talking or whether [Williams] was

talking, ] don't know. You know what 1

am saying? You're asking me to tell

{***24] you something that 1 don't

know.

Q. Did he ever say what that was?

A, What what was?

Q. You said, why are you telling him

what we just done? Did he ever say what

that was that they had just done?

A. No, but [Williams] responded

back to him and said, this my brother, and

[Parker] is cool. He ain't going to say

nothing. Eventually he was talking about

what he was telling us about.

Q. So you assume that, right?

A. Yeah. Well, 1 am assuming.

The trial judge ruled “that the matter will be an

adoptive admission." Over Lynch's hearsay objection,

Parker later testified at trial as follows:

Q. What starts to happen when you get

upstairs?

A. When I got in the den area, [Williams] had went to the bathroom. He came

out and knocked on his brother's door, and

he starts talking to His brother. He was

telling him about what they had just donc.

So | was in the den area. I could hear basically what they were saying.

Q. Did you have any problem hearing

anything that was being said?

A. No. And 1 heard [Williams] say

that they had just shot a woman, So when

| heard the part that they had just shot

[#359] a woman, that's what really, really, [***25] you know, gripped my attention.

So I came out of the den. and | was

like, man, what you done got yourself in-

to? You-all done shot a woman? And

(Williams] was like, yeah. So | was like,

where was you-all at? He was like, we

went to [Ronald Scott's} house. ...

He said we went to go get [Scott].

And I was like, why would you-all go in

and try to do something and rob him or

whatever when he cool with everybody?

You know, he hang out with us. And

[Williams] was like, man, I'm going to get

put out. My light's due, my rent due, my

girl getting ready to leave and I don't care

who I get.

So I said, well, who was the lady that

you-all shot? So he was like, it was a

skinny lady, 1 said, that man's mom is,

you know, skinny. And he was like, no, it

won't his mom. It probably was his sister.

I said, what difference does it make if it

was his sister or his mom, you know? And

at that time [Lynch] was coming up the

stairs,

Page 7

On cross-examination, Parker repeats that Lynch is

Q. And you get upstairs --

A, Right.

Q. --and there is a conversation that

goes on. [Williams] goes into the [***26]

bathroom. You go into the den. Then

[Williams] and his brother engage in a

conversation.

A. Correct.

Q. At that time [Williams] télls him

that they've just killed a woman?

A. Yeah. He said --these words is his

exact words. He said, "That young kid

downstairs leaning on the car is trigger

happy." And [Williams's] brother was

like, what you talking about?" And [Williams] like, "Man, he just shot a lady.”

Q. And at that point, the person that

you're describing as Lester Lynch js not in

the house, is he?

[*360] A. No. He didn't come up

until --

26

outside of the residence when Parker, Williams, and Williams's brother entered it.

0022a

Page 8

46 Va. App. 342, *; 617 S.E.2d 399, **;

2005 Va. App. LEXIS 310, ***

RHR RAK

Q. And then at some point while

you're talking to [Williams], the person

comes upstairs and says, “Why are you

telling him what we just done?"

A. Not the person. Him. The gentleman right there, Mr. Lester Lynch. He

came up the stairs and asked him, he said,

"Why are you telling them what we just

done?”

Q. Did he ever say why you telling

them why we went to kiJ] someone?

A. No. He didn't say nothing about

that. He asked him --

Q. Did he ever --

A. [Williams] had already told us that

someone had got killed. And [Lynch]

[**408] walked up and asked him why

was he telling us what [***27] they had

just done.

Q. But you said [Williams] told his

brother we had been on a sting, right? Isn't

that what you said?

A. Yes,

Q. And you said --

A. And [Williams} told them what

happened,

Q. Didn't you just say a sting could

be anything?

A. Like a sting is slang for robbing or

you can go steal something to get away

with it. | got away with that sting. You

could rob somebody. You could plan to

rob somebody and say I'm going on a

sting tonight, you know. You don't know.

It could be stealing radios out cars, anything. A sting is going to do something

wrong, period.

Q. So he never said it was killing anyone?

A. [Williams] said they had shot

someone. He said they just shot --

Q. But that’s what you're saying that

[Williams] said?

A. Yeah. [Williams] said they had

just killed somebody.

The Commonwealth, which was the party " seeking

to have hearsay declarations of a witness admitted as an

exception to the general rule[,] must clearly show that

[the hearsay declarations] [*361] are within the exception. '" Id. (citation omitted). 1 would hold that the

Commonwealth failed to meet its burden and that the

trial judge erroneously [***28] admitted Parker's recitation of Williams's statements as “an adoptive admission" by Lynch. When a statement is offered as an adoptive admission, a primary inquiry the trial judge must

make is "whether there are sufficient foundational facts

from which the jury could infer that the defendant heard,

understood, and acquiesced in the statement.” United

States v, Jinadu, 98 F.3d 239, 244 (6th Cir, 1996). To

satisfy this exception to the hearsay rule, the evidence

must prove the "statement tending to incriminate one

accused of committing a crime is made in his presence

and hearing.” James v. Commonwealth, 192 Va. 713,

718, 66 SE, 2d 513, 516 (1951).

Simply put, the Commonwealth's evidence did not

prove the predicate facts necessary to invoke the hearsay

exception. See Sapp v. Commomvealth, 263 Va. 415,

424, 559 S.E. 2d 645, 650 (2002) (holding that the proponent of evidence, which is claimed to fall within an

exception to the hearsay rule, has the burden "to lay a

proper predicate for its introduction"); United States v-

Robinson, 275 F.3d 371, 383 (4th Cir. 2001) (noting that

under the federal rules a primary determination [***29]

is "whether there are sufficient foundational facts from

which the jury could infer that the defendant heard, understood, and acquiesced in the statement"). Both case

law and commonsense dictate that for a defendant to

have adopted an admission as his own "foundational

facts" must first establish that the defendant heard and

understood the statement.

No evidence proved Williams made his statement in

Lynch's "presence and hearing." James, 192 Va. at 718,

66 S.E. 2d at 516. Indeed, the evidence established just

the opposite: that Lynch was not in the presence of the

three men when Williams spoke about the killing. Parker

testified he was in the bathroom when Williams first

mentioned the killing to his brother. By Parker's own

testimony, he joined the conversation only after he

emerged from the bathroom in the den, and he was aware

Lynch had not then entered the residence: "he [Lynch]

didn't come up the stairs." Obviously, Lynch could

[*362] not have adopted the statement as his own if he

never heard it. It is simply speculation to say at what

point, if at all, Lynch adopted any of Williams's comments. Yet, the jury was allowed to attribute to Lynch al}

27

0023a

an ois aa Te be eee

aS

a

Page 9

46 Va. App. 342, *; 617 S.E.2d 399, **:

2005 Va. App. LEXIS 310, **4

of Williams's statements. [***30} In view of the evidence, it is just as likely that Lynch was motivated to

speak merely because he detected a heated argument as

he ascended the stairs. For these reasons, 1 would hold

that the evidence failed to prove that Lynch heard Williams's conversation and that, therefore, the trial judge

erred in admitting into evidence Williams's statements

about the killing.

I would further hold that the admission of the hearsay evidence was not harmless. This inadmissible evidence was so prejudicial [**409] to Lynch that we

cannot reasonably conclude that it did not affect the verdict.

"If one cannot say, with fair assurance,

after pondering all that happened without

stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the error, it is impossible

to conclude that substantial rights were

not affected... . If so, or if one is left in

grave doubt, the conviction cannot stand."

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E. 2d

728, 732 (2001) (quoting Kotteakos v. United States, 328

U.S. 750, 764-65, 90 L. Ed. 1557, 66S. Ct. 1239 (1946)).

Applying this test, the United States Supreme Court has

held that “the principle [***31] of Kotteakos [means]

that when an error's natural effect is to prejudice substantial rights and the cout is in grave doubt about the

harmlessness of that error, the error must be treated as if

it had a ‘substantial and injurious effect’ on the verdict."

O'Neal v. McAninch, 31/3 U.S. 432, 444, 130 L. Ed. 2d

947, 115 S. Ct 992 (1995). “The inquiry cannot be

merely whether there was enough lo support the result,

apart from the phase affected by the error. It is rather,

even so, whether the error itself had substantial influence. If so, or if one is Jeft in grave doubt, the conviction

cannot stand." Kotteakos, 328 U.S. at 765. Consistent

with these principles, the Supreme Court of Virginia has

held that even if "the other evidence amply supports the .

[*363] verdicts, [error is not harmless when] the

disputed [evidence] may well have affected the . . . decision." Cartera v. Commonwealth, 219 Va. 516, 519, 248

SE. 2d 784, 786 (1978). In short, our "harmless error

analysis .. . [is not] simply a sufficiency of the evidence

analysis." Hooker v. Commomvealth, 14 Va. App. 454,

458, 418 SE. 2d 343, 345, 8 Va. Law Rep, 2979 (1992).

The inadmissible [***32] evidence had such a substantial influence that we cannot reasonably conclude

that it did not affect the verdict. The jury was asked to

make a critical credibility determination whether to believe Lynch's alibi witnesses, who placed him somewhere else during the killing, or to believe Scott, Reid,

and Parker, whose testimony placed Lynch at the house

where the woman was killed. The inadmissible hearsay

evidence served to impermissibly buttress the credibility

of the Commonwealth's witnesses because the evidence

identifying Lynch as being present at the killings was

problematic and was marred by a number of inconsistencies.

For example, Reid, who was present in the house

when the killing occurred, testified that the man who

entered the room with Williams wore a mask. After the

killing, she could not identify Lynch from photographs.

She only later identified him when she saw him in court

as the defendant. Scott, on the other hand, was in the

same room as Reid but testified that the man did not

wear a mask. He did not initially identify the man as

Lynch but did so at trial.

Significantly, the record indicates that shortly after

the killing, Scott identified Parker, not Lynch as one of

[***33] the persons who entered the residence when his

mother was killed. He admitted at trial that he first told

police that Williams, Williams's brother, and Parker may

have been the ones who robbed him. This identification

was significant because Scott and Parker knew each other quite well. Scott also knew Williams. The jury may

not have believed this curious change in Scott's memory

and identification had they not learned about Lynch's

"adopted" confession that Parker related at trial.

[*364] Scott also testified that Parker twice had

visited him at his mother’s house earlier that day, The

first time, Parker purchased heroin. He later returned to

the house and demanded a return of his money, accusing

Scott of selling bad heroin. Scott testified that during

both occasions Williams, whom he knew, and Lynch,

whom he had not previously met, were in a car waiting

for Parker. Conversely, in his testimony, Parker never

acknowledged his earlier presence at Scott's mother's

house or that he knew Scott had a large amount of money

and heroin in the house.

Significantly too, Parker's testimony conflicted with

Scott's testimony about Lynch's whereabouts during the

day. Whereas Scott testified that Lynch [***34] was

waiting for Parker in the car when Parker purchased heroin, Parker testified that he first saw Lynch with

{**410] Williams in the early evening and that he accompanied them in the car for just one block because

Lynch and Williams had someplace else to go. Parker

testified that he next saw Williams and Lynch when they

28

0024a

Page 10

46 Va. App. 342, *; 617 S.E.2d 399, **;

2005 Va. App. LEXIS 310, ***

returned to Williams's brother's residence with a “younger fellow" whom he did not identify. At that time, Williams went upstairs and made his statement about the

shooting.

The Commonwealth's use of Parker's testimony to

tie Lynch to Williams's statement effectively shifted the

focus from Scott's earlier statement to the police that

Parker, whom he knew, was indeed the unmasked man in

the house during the shooting. When Scott's trial testimony identified Lynch, Parker buttressed Scott's identification by relating Lynch's "adopted" confession. With

this change, the jury likely saw Parker as an observer,

Not a participant. It is, therefore, reasonable to assume

that in weighing the evidence the jury gave substantial

weight to Parker's testimony relating the confession of

Williams and implicating Lynch as being present at the

killing. A confession of a perpetrator implicating [***35]

the presence of a codefendant at the scene of a crime is

inherently prejudicial.

Clearly, where the principal direct evidence against the accused is the testimony of an accomplice, the credibility of that

witness will be a significant factor in the

jury's determination [*365] of the accused's level] of culpability. [The Supreme

Court has] consistently held that this

credibility determination rests with the

jury and is not subject to challenge on

appeal merely because the testimony is

self-serving, results from a favorable plea

arrangement, or because the witness is

himself a felon. However, here the issue is

not the credibility of the witness, but rather the potential for harm caused by the

erroneous admission of evidence which

tends to support the jury's credibility determination. In that context we must presume that such evidence had the potential

to influence the jury into accepting the

properly admitted evidence as more credible and, thus, to taint the jury's determination of the facts.

Lilly y. Commonwealth, 258 Va. 548, 553, 523 S.E. 2d

208, 210 (1999).

1 would hold that it does not plainly appear that the

error did not substantially and injuriously affect [***36]

the verdict. The evidence, if successful in achieving its

purpose, clearly would have affected the verdict. See

Norfolk Ry. & Light Co. v. Corletio, 100 Va. 355, 360,

41 S.E. 740, 742 (1902) (holding that "it is... well settled that ifa... mistake of the court appears in the record it must be presumed that it affected the verdict of the

jury, and is therefore ground for which the judgment

must be reversed, unless it plainly appears from the

whole record that the error did not affect, and could not

have affected, their verdict").

For these reasons, ] would reverse the convictions

and remand for a new trial.

29

0025a

> Positive

As of: December 17, 2016 12:08 PM EST

Lynch v. Commonwealth

Supreme Court of Virginia

June 8, 2006, Decided

Record No. 052079

Reporter

272 Va. 204 *; 630 S.E.2d 482 **; 2006 Va. LEXIS 68 **"

LESTER BERNARD LYNCH, JR. v. COMMONWEALTH

OF VIRGINIA

Prior History: [14] FROM THE COURT OF

APPEALS OF VIRGINIA.

Lynch v. Commonwealth, 46 Va. App. 342. 617 S.E.2d

399, 2005 Va. App. LEXIS 310 (2005)

Disposition: Affirmed.

Core Terms

admissible, conversation, stairs, hearsay rule exception,

adoptive admission, preponderance, predicate, proffer,

words

Case Summary

Procedural Posture

Defendant appealed from a judgment of the Court of

Appeals, Virginia, which court had affirmed his

convictions for murder, armed robbery, and related

crimes and denied a rehearing en banc. Defendant

argued that the appellate court had erred in ruling that

the testimony of a prosecution witness was admissible

because the prosecution had shown, by a

preponderance of the evidence, that the adoptive

admission hearsay exception applied.

Overview

Defendant and one accomplice visited a third party, and

the accomplice stood at the top of the stairs, telling the

third party what he and defendant had done. Defendant

came into the home and up the stairs, asking the

accomplice why he told what they had done. The

accomplice and the third party did not testify at trial, but

the statement of the accomplice implicating defendant

Patrick Genova

was admitted as an adoptive admission against him. On

review, the court rejected his claim that the "clear and

convincing" standard of proof applied, ruling instead that

when a party relied on a exception to the hearsay rule to

admit evidence, the applicable burden of proof was a

“preponderance of the evidence." Thus, the trial court

did not err in admitting the statement of the accomplice.

The rule, the court explained, was based on the theory

that the natural reaction of someone hearing an untrue

statement accusing him of committing a crime was to

deny it. Defendant, however, did not deny the

statement. The court also concluded that under the

facts, defendant had heard enough of the statement to

have understeod it. His words and conduct supplied the

predicate facts for the admission of the statement.

Outcome

The court affirmed the appellate court's judgment.

LexisNexis® Headnotes

Criminal Law & Procedure > Juries & Jurors > Province of

Court & Jury > Factual Issues

Criminal Law & Procedure > Juries & Jurors > Province of

Court & Jury > Legal Issues

Criminal Law & Procedure > Juries & Jurors > Province of

Court & Jury > Weight of Evidence

Evidence > ... > Hearsay > Exceptions > General Overview

Evidence > Burdens of Proof > Preponderance of Evidence

HN? A party relying upon an exception to the hearsay

rule for the admissibility of evidence bears the burden of

persuading the court that the evidence falls within the

exception. The standard of proof to meet that burden is

by a preponderance of the evidence, not by the higher

“clear and convincing” standard. Factual questions must

usually be resolved to determine whethg

of the evidence has carried that burden}

EXHIBIT

—

30 [

0026a

Page 2 of 4

272 Va. 204, *204; 630 S.E.2d 482, **482; 2006 Va. LEXIS 68, ***1

antecedent or predicate facts are to be determined by

the trial court alone. If the court admits the evidence, the

credibility of the witnesses and the weight of the

evidence are to be determined by the jury.

Criminal Law & Procedure > Trials > Burdens of

Proof > Genera! Overview

Evidence > ... > Hearsay > Exceptions > General Overview

HN2 One seeking to have hearsay declarations of a

witness admitted as an exception to the general rule

must clearly show that they are within the exception. A

party who relies upon an exception to an exclusionary

rule of evidence bears the burden of establishing

admissibility.

Evidence > ... > Exemptions > Statements by Party

Opponents > Adopted Statements

HN3 The general rule that when a statement accusing

one of the commission of an offense is made in his

presence and hearing and is not denied or contradicted

by him, both the statement and the fact of his failure to

deny are admissible in a criminal proceeding against

him, as evidence of his acquiescence in its truth, is

based on the theory that the natural reaction of one

accused of a crime is to deny the accusation if it is

unjust or untrue. The accusation and his silence

thereunder to be admissible must, however, have been

under such circumstances as would naturally call for a

reply or denial and such as would afford a favorable

opportunity for denial. The hearsay character of the

incriminating statement made to the accused would

render it inadmissible, except for the fact that the

statement is not offered in evidence as proof of a fact

asserted but as a predicate to the showing of the

reaction of the accused thereto.

Criminal Law & Procedure > Trials > Burdens of

Proof > Prosecution

Evidence > ... > Exemptions > Statements by Party

Opponents > Adopted Statements

Evidence > Burdens of Proof > Preponderance of Evidence

HN4 Most of the adoptive admissions that the Supreme

Court of Virginia has considered have been

characterized as tacit admissions or admissions by

silence. In such cases, the Commonwealth of Virginia

has the burden of establishing, by a preponderance of

the evidence, the predicate facts that (1) the defendant

must have heard the incriminating statements, (2) he

must have understood that they accused him of

complicity in a crime, (3) the circumstances afforded him

a fair opportunity to deny or object, and (4) the

circumstances would naturally call for a reply.

Criminal Law & Procedure > Trials > Burdens of

Proof > Prosecution

Evidence > ... > Exemptions > Statements by Party

Opponents > Adopted Statements

HN35 A statement may become admissible under the

adoptive admission exception to the hearsay rule upon

a showing of its tacit adoption by a party, as well as by

more overt demonstrations of adoption. A party may

manifest adoption of a statement made by ancther in

any number of ways, including words, conduct, or

silence. In some cases, the defendant's words or

conduct may supply most, if not all, of the predicate

facts that the Commonwealth of Virginia must prove to

bring the evidence within the adoptive admission

exception.

Counsel: L. Steven Emmert (Sykes, Bourdon, Ahern &

Levy, on briefs), for appellant.

Rosemary V. Bournce, Assistant Attorney General

(Robert F. McDonnell, Attorney General, on brief), for

appellee.

Judges: OPINION BY SENIOR JUSTICE CHARLES §.

RUSSELL.

Opinion by: CHARLES S. RUSSELL

Opinion

[483] [°206] Present: Hassell, C.J., Lacy, Koontz,

Kinser, Lemons, and Agee, JJ., and Russell, S.J.

OPINION BY SENIOR JUSTICE CHARLES 8S.

RUSSELL.

Lester Bernard Lynch, Jr., was convicted by a jury in the

Circuit Court of the City of Norfolk of first-degree

murder, armed rebbery, burglary and three firearms

offenses. He was sentenced to a total of 68 years

confinement. The Court of Appeals affirmed the

convictions, Lynch v. Commonwealth, 46 Va. App. 342,

617 S.E.2d 399 (2005), and denied a petition for

rehearing en banc. We awarded Lynch an appeal.

There are two assignments of error: (1) that the Court of

Appeals erred in ruling that certain testimony was

admissible against Lynch as an adoptive admission, and

(2) that the Court of Appeals erred in ruling that a litigant

Patrick Genova 31

0027a

Page 3 of 4

272 Va. 204, *206; 630 S.E.2d 482, **483; 2006 Va. LEXIS 68, ***1

offering evidence under an exception to the hearsay rule

has the burden of showing that the exception applies by

a preponderance of the evidence, rather than by clear

and convincing evidence.

Facts

Under familiar principles of appellate review, the facts

will be stated [*2] in the light most favorable to the

Commonwealth, the prevailing party at trial. On June 9,

2001, Ronald Scott and Tamika Reid were visiting

Scott's mother, Belinda Scott, in her home. Three men

entered the house and struck Ronald Scoit repeatedly

with a gun, robbed him, shot Belinda Scott in the face,

fatally, and stole other items from the house before

leaving. The surviving witnesses, Ronald Scott and

Tamika Reid, both identified the defendant, Lynch, as

one of the three perpetrators. Scott also identified

Gregory Williams as another of the trio, but neither

could identify the third man.

At trial, the court heard the testimony of Kenneth Parker

out of the presence of the jury by agreement of counsel.

Parker's evidence was proffered by the Commonwealth

to lay a foundation for an adoptive admission. At the

conclusion of the proffer, the court ruled that Parker's

testimony would be admitted under an exception to the

hearsay rule. Because this appeal concerns only that

ruling, we will confine our consideration of the evidence

to the pertinent parts of Parker's proffered testimony on

which the ruling was based.

[207] Parker testified that he was visiting Christopher

Williams, Gregory's brother, [***3] on the day of the

crimes. Parker was standing at the head of the stairs in

Christopher's house, engaged in a conversation with

Christopher, who was standing in his bedroom door.

Gregory Williams had recently arrived and was also

present. Gregory was telling Christopher what had just

happened at the Scott house. Parker, who knew Ronald

Scott and his mother, entered the conversation. Gregory

said that “they had just come from off a sting at Little

Ronald's house" and that there was “another little young

guy downstairs standing at the car" who was "trigger

happy” and had "shot a woman." While Gregory was

telling what had happened at the Scott house, Lynch

came up the stairs and said, “why is you telling them

what we just done?"

On cross-examination, Parker elaborated. He testified

that he did not know exactly when Lynch entered the

house and began overhearing the conversation, but "he

might have been standing at the botiom of the stairs

listening to us the whole time.” In any event, the

Patrick Genova

conversation had lasted long enough to go into some

detail. Parker, after hearing about the murder, said to

Gregory, "you know, that was probably that man's

mama." Gregory replied, "no, it was a skinny [***4}

lady." Parker said that Ronald Scott's mother was

“skinny.” Gregory said, "probably was his sister.” Parker

testified that he then said, "his sister and them don't

even stay there. His mama stay there. You al! probably

hurt that man’s mama, you know what | am saying? As |

was saying that to him, [Lynch] was coming up the stairs

.... 1am quite sure he was hearing everything.” It was

at that point that Lynch asked Gregory "why was he

telling us that . . . what we just done.” At the conclusion

of the proffer, the trial court overruled Lynch's hearsay

objection and found that Parker's testimony [**484]

showed that Lynch had heard the statements that

incriminated him, fully understood them, had a full

opportunity to deny them, but instead acquiesced in

them. The court admitted the evidence and Parker's

testimony before the jury was substantially the same as

the proffer. Neither Gregory Williams nor Christopher

Williams testified at the trial.

Analysis

HN7A party relying upon an exception to the hearsay

rule for the admissibility of evidence bears the burden of

persuading the [208] court that the evidence falls

within the exception. “We have consistently held that

the standard of proof to meet [***5] that burden is by a

preponderance of the evidence, not by the higher "clear

and convincing" standard. Bloor v. Commonwealth,

262 Va. 814. 821, 554 S.E.2d 84, 87 (2001): Witt v.

“Lynch contends that the standard of proof required to place

evidence within the hearsay exception is "clear and

convincing," not a simple preponderance. Lynch argues that

we established such a standard in Doe v. Thomas, 227 Va.

466, 318 S.E.2d 382 (1984), where we quoted from a Texas

Supreme Court decision, Skiflern and Sons, Inc. v. Rosen. 359

S.W.2d 298, 301, 5 Tex. Sup. Ct. J. 538 (Tex. 1962), as

follows: HN2 "One seeking to have hearsay declarations of a

witness admitted as an exception to the general rule must

clearly show that they are within the exception." We

referenced the Texas case, not to establish a standard of

proof for admissibility, but to Illustrate that "[a] party who relies

upon an exception to an exclusionary rule of evidence bears

the burden of establishing admissibility." Doe, 227 Va. at 472

318 SE 2d at 386. Nothing we said in Doe stands for the

proposition that the standard of proof required to establish the

underlying facts necessary to admit a statement under an

exception to the hearsay rule Is other than proof by a

preponderance.

32

0028a

Page 4 of 4

272 Va. 204, *208; 630 S.E.2d 482, **484; 2006 Va. LEXIS 68, ***5

Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296

(1975). Factual questions must usually be resolved to

determine whether the proponent of the evidence has

carried that burden, and those antecedent or predicate

facts are to be determined by the trial court alone. If the

court admits the evidence, the credibility of the

Witnesses and the weight of the evidence are to be

determined by the jury. Bloom, 262 Va. at 821, 554

S.E.2d at 87; Muilins v. Commonwealth, 113 Va. 787,

791, 75 S.E. 193, 195-96. (1912). Therefore, Lynch's

second assignment of error is not well taken.

[*6] We now turn to the legal correctness of the trial

court’s decision to admit the statements of Gregory

Williams. In Knight v. Commonwealth, 196 Va. 433, 83

S.E.2d 738 (1954), we said:

HN The general rule that when a statement

accusing one of the commission of an offense is

made in his presence and hearing and is not denied

or contradicted by him, both the stafement and the

fact of his failure to deny are admissible in a

criminal proceeding against him, as evidence of his

acquiescence in ifs truth, is based on the theory

that the natural reaction of one accused of a crime

is to deny the accusation if it is unjust or untrue.

The accusation and his silence thereunder to be

admissible must, however, have been under such

circumstances as would naturally call for a reply or

denial, and such as would afford a favorable

opportunity for denial... . The hearsay character of

the incriminating statement made to the accused

would render it inadmissibie, except for the fact that

the statement [209] is not offered in evidence as

proof of a fact asserted but as a predicate to the

showing of the reaction of the accused thereto.

Id. at 436, 83 S.E.2d at 740 f**7} (internal quotation

marks omitted).

HN4 Most of the adoptive admissions that we have

considered have been characterized as tacit

admissions, or admissions by silence. In such cases,

the Commonwealth has the burden of establishing, by a

preponderance of the evidence, the predicate facts that

(1) the defendant must have heard the incriminating

statements, (2) he must have understood that they

accused him of complicity in a crime, (3) the

circumstances afforded him a fair opportunity to deny or

object, and (4) the circumstances would naturally call for

a reply. Owens v. Commonweaith, 186 Va. 689, 699, 43

S.E.2d 895, 899 (1947). See Welch v. Commonwealth,

271 Va. 558, 564-65, 628 S.E 2d 340, 343 (2006).

Patrick Genova

HNS A statement may become admissible under the

adoptive admission exception to the hearsay rule upon

a showing of its tacit adoption by a party, as well as by

more overt demonstrations of adoption. A party [485]

may manifest adoption of a statement made by another

in any number of ways, including words, conduct, or

silence. United States v. Robinson, 275 F.3d 371, 383

(4th Cir. 2007). In some cases, the defendant's words or

conduct may supply most, [***8] if not all, of the

predicate facts that the Commonwealth must prove to

bring the evidence within the adoptive admission

exception. See, e.g., United States v. Jinadu, 98 F.3d

239, 244 (6th Cir. 1996).

Conclusion

The trial court and the Court of Appeals determined that

this is such a case, and we agree. Although, as Lynch

points out, the Commonwealth's evidence places him

outside the house when the conversation began among

the three men at the head of the stairs, that fact is

immaterial in the light of Lynch's subsequent words and

conduct. Although we do not know the exact point at

which he began to overhear their conversation, he

obviously heard enough of it to propel him into the

house and up the stairs to confront them. As he was

coming up the stairs, Parker was remonstrating with

Gregory Williams by saying: "You all probably hurt that

man's mama.” Lynch's reaction was immediate. instead

of denying that statemeni, or any of the preceding

conversation, he upbraided Gregory for revealing "what

we just done.” His words: "Why [are] you telling [*210}

them" clearly indicate that he had heard and understood

the full import of Gregory's statements. Lynch's

words [**9] and conduct thus supplied all of the

predicate facts required by Owens to render Gregory's

statements admissible under the adoptive admission

exception to the hearsay nile.

Accordingly, we will affirm the judgment of the Court of

Appeals.

Affirmed.

End of Document

33

0029a

VIRGINIA:

IN THE CIRCUIT COURT FOR THE CITY OF NORFOLK

LESTER B. LYNCH, #1162173

Petitioner,

Case No.: CL 17000583-00

TRACY RAY, WARDEN,

SUSSEX TT STATE PRISON

“no, Respondent

ORDER

THIS DAY came the Petitioner, Lester B. Lynch, by counsel, for Petitioner’s request for a

non-suit pursuant to Section 8.01-380 of the Code of Virginia, 1950.

UPON CONSIDERATION WHEREOF, it appearing that the Petitioner has not taken any

prior non-suits against respondent, Tracy Ray, Warden, Sussex II State Prison, it is ORDERED that

the Petitioner’s Writ of Habeas Corpus be, and it hereby is, non-suited.

i

Enter this LZ day of Sv we. , 2017.

te

I ASK FOR THIS:

Gi ud

Edward A. Fiorella, fr.

Fraim & Fiorella, P.C.

Town Point Center

150 Boush Street, Suite 600

Norfolk VA 23510

Por - \

AG-\

ae ae na

0030a

[OCR skipped on page(s) 31-1247]

[Read from a scan; the first 30 pages.]