Summary
affirming order unpublished in Virginia Court of Appeals Reports
Summary of this case from Brown v. CommonwealthOpinion
Randolph D. Stowe, Norfolk (Jon M. Babineau, on briefs), for appellant.
Thomas C. Daniel, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.
Before MOON, C.J., and BAKER, BARROW, BENTON, COLEMAN, KOONTZ, WILLIS, ELDER and FITZPATRICK, JJ.
UPON A REHEARING EN BANC
On August 10, 1993 a panel of this Court affirmed the convictions of William Elwood Weller, Jr., 16 Va.App. 886, 434 S.E.2d 330 (1993). Weller's petition for rehearing en banc was granted and heard on February 18, 1994. For the reasons stated in the panel's opinion, a majority of the Court affirms the judgment of the trial court. Accordingly, the stay of this Court's August 10, 1993 mandate is lifted, and its directives are reinstated.
BARROW, J., with whom BENTON, J., joins, would reverse the judgment of the trial court for the reasons stated in his dissenting opinion.
BENTON, J., would also reverse the judgment of the trial court for the reasons stated in his dissenting opinion to the original panel decision. See id. at 897-900, 434 S.E.2d at 337-39.
BARROW, Judge, with whom BENTON, J. concurs in Parts I and III, dissenting.
Neither the victim's nor the defendant's out-of-court statements were, in my opinion, admissible into evidence. Furthermore, if the trial court erred in declining to admit the defendant's statement, this error was not harmless. For these reasons, I dissent.
I. VICTIM'S STATEMENT
The victim's out-of-court statement to her sister was not offered merely to prove that the statement was made; it was offered, instead, to prove the truth of what she said. Only if the victim spoke truthfully regarding her intention to take her rings to the jeweler could the jury infer that she possessed the rings at that moment. Thus, the statement had to be offered to prove the truth of what she said, and it falls within the prohibitions of the hearsay rule.
Furthermore, the statement was not admissible, as an exception to the hearsay rule, to prove the victim's state of mind. While declarations that reveal the declarant's state of mind are admissible, they are admissible only if the state of mind reflected in the declarations is "probative of an ultimate issue in [the] case." Evans-Smith v. Commonwealth, 5 Va.App. 188, 198, 361 S.E.2d 436, 442 (1987). Whether the victim intended to take her rings to a jeweler may have tended to prove that she later did so. See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 299-300, 12 S.Ct. 909, 914, 36 L.Ed. 706 (1892). However, her intent did not tend to prove issues material to this case, namely, the accused's motive or intent, or whether he murdered the victim. See Evans-Smith v. Commonwealth, 5 Va.App. at 198, 361 S.E.2d at 442.
Church v. Commonwealth, 230 Va. 208, 335 S.E.2d 823 (1985), does not, in my opinion, support the admission of this evidence. In Church, the Supreme Court held admissible a child's out-of-court declaration that sex is "dirty, nasty and it hurt." Id. at 212, 335 S.E.2d at 825. Certainly, the declaration was not admitted to prove the truth of its assertion; instead, it was admitted to prove the child's attitude toward sex, her state of mind. Id. The child's state of mind tended to prove a material issue in the case, namely whether she had been sexually abused; therefore, it was admissible. Id.
Church involves no more than a state-of-mind exception. It does not allow a litigant to circumvent the hearsay prohibition simply because a disputed fact may be inferred from an out-of-court declaration. Overcoming the hearsay rule in such a manner would create the irony of allowing proof of an out-of-court declaration to permit an inference of a fact where proof of such a statement would not be permitted to prove the actual fact. In this case, under such a rule, even though the victim's out-of-court statement that she had her rings on would not be admissible to prove that she did have them on, an out-of-court statement from which one could merely infer that she had them on would be admissible. Had the Supreme Court intended in Church to have created such a broad, new exception to the hearsay rule, it would have done so explicitly.
II. ACCUSED'S STATEMENT
Next, for the same reason, I would find inadmissible the out-of-court declaration made by the accused when he attempted to sell a ring to a third person before the victim's murder. The testimony, in my opinion, was offered to prove the truth of its assertion, that is, that he intended to sell an antique ring with a green stone. Otherwise, the statement would not constitute circumstantial proof of the fact that at that time he possessed such a ring. In addition, the testimony was not admissible to prove the accused's state of mind because what the accused intended to do with the ring was not a material issue in the case.
III. HARMLESS ERROR
Finally, if the accused's statement with regard to the sale of the ring was admissible, failure to admit it was not a harmless error. Whether the victim had the rings at the time of her death was, as the majority points out, "[a] key issue at trial." Although sufficient evidence was presented to establish that the victim had the rings at her death, we cannot say, as a matter of law, that the jury would have concluded beyond a reasonable doubt that she did. The refusal to admit this evidence would have been harmless only if the victim's possession of the rings at the time of her death was undisputed, or disputed only by evidence which is incredible, as a matter of law. See Woodward v. Commonwealth, 16 Va.App. 672, 675, 432 S.E.2d 510, 512 (1993) (evidence admitted in error does not affect a verdict if it is "merely cumulative of other, undisputed evidence"); see also Hopkins v. Commonwealth, 230 Va. 280, 286, 337 S.E.2d 264, 268-69 (1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1498, 89 L.Ed.2d 898 (1986); Schindel v. Commonwealth, 219 Va. 814, 817, 252 S.E.2d 302, 304 (1979); Ferguson v. Commonwealth, 16 Va.App. 9, 10, 427 S.E.2d 442, 443 (1993); Hooker v. Commonwealth, 14 Va.App. 454, 458, 418 S.E.2d 343, 345-46 (1992); Phoung v. Commonwealth, 15 Va.App. 457, 466, 424 S.E.2d 712, 717 (1992).
For these reasons, I would hold that both the victim's and the defendant's out-of-court declarations were inadmissible, would reverse the judgment of conviction, and would remand the proceeding for a new trial.
ORDER
The trial court shall allow court-appointed counsel for the appellant an additional $300 for services rendered the appellant on the rehearing portion of this appeal, in addition to their costs and necessary direct out-of-pocket expenses. This amount shall be added to the costs due the Commonwealth in the August 10, 1993 mandate.
This order shall be published and certified to the trial court.