The following is an outline of Virginia criminal case law related to evidence. It is copied from the Evidence section of an outline maintained by Richard Collins, an attorney at Collins & Hyman, PLC. Because Mr. Collins created the outline for his own reference, rather than for publication, the outline contains many abbreviations. Questions regarding the abbreviations, or case cites, can be sent to rick@collinshyman.com.
EVIDENCE
General
Kilby (COA, published July 29, 2008)- On a daily basis, trial courts hear evidence admissible for one purpose and inadmissible for another. Courts consider evidence only in its permissible context. In a bench trial, the trial judge is presumed to disregard inadmissible evidence, and this presumption will control in the absence of clear evidence to the contrary. Since D didn’t object to the out of court statements unless their content was admitted against D, there was no basis for holding that the trial court considered the evidence for an impermissible purpose.
After-Discovered Evidence
Lamm, COA, published February 9, 2010- discusses the rule in context of an aggravated m/w case where V regained the senses that were part of the basis for the permanent injury element after the trial.
Age
Haley (unpublished COA, November 6, 2007)- age may be proven by physical appearance.
Forte, COA, published June 9, 2015. the rule set forth in Jewell envisions two categories of cases: (1) those where it is obvious from the defendant’s appearance that he or she meets or exceeds the statutory age and (2) those where it is not obvious whether the defendant meets or exceeds the statutory age. Where the age isn’t obvious, the court may not rely solely on its observations. The Court in Jewell found that determining which type of scenario is applicable is a question for the trial court and factfinder
Authentication
Atkins, COA, published July 5, 2017. D’s phone contained texts and tweets tying him to burglaries. D objected on grounds that Commonwealth hadn’t proven that D sent the messages. Although the type of evidence used to prove the identity of the person making the statement may vary based in part upon the medium used to convey the message, the governing legal standard is the same—proof by a preponderance of direct evidence, circumstantial evidence, or a combination of both. COA held that because the messages were from his password protected phone, using an app created with an email address in his name and referenced property found his bedroom was sufficient to establish that D sent the messages.
Availability of Witness
Morgan (COA, published September 18, 2007)- Commonwealth used reasonable efforts to obtain deported witness’s availability for trial and therefore trial court did not err in finding her unavailable and admitting transcript of prior testimony. Defines due diligence.
Bailey, COA, published November 13, 2013. A defendant’s refusal to testify doesn’t make him unavailable for the purposes of any relevant evidentiary rule. But see footnote stating that the court was not presented with a 5th Amendment question. However, extensive discussion following that footnote indicates that a 5th Amendment challenge would fail.
Bad Acts
Pryor v. Commonwealth (published, June 19, 2007)- videotape of incident leading to stricken distribution charge admissible because it was probative of identity. Virginia follows an inclusionary approach to bad acts evidence, meaning that bad acts evidence is admissible if it is relevant to any purpose other than to show D’s criminal propensity. OVERRULED by VSC.
Franklin (COA, unpublished, September 25, 2007)- In an embezzlement case, evidence of similar frauds can be used, particularly under the theory that an experienced employee would make the same mistake over a period of transactions.
Layug (COA, unpublished, October 2, 2007)- not error to admit evidence of accomplice’s killing during commission of another robbery that was committed in recently stolen car that was the subject of the prosecution as it was relevant to D’s identity. When the other crimes evidence is relevant to a contested fact, the Commonwealth does not have to rely that the factfinder will be satisfied with other evidence.
Solesbee (unpublished, November 13, 2007)- When four other robbery victims all identified D as the perpetrator, and the facts of those other robberies were highly similar and idiosyncratic to the one charged, evidence of these other robberies was admissible to show D’s identity.
McGowan (VSC, November 2, 2007)- Commonwealth couldn’t admit evidence about D’s possession of suspected crack during arrest even though she testified that she wouldn’t know what crack looked like. D could be cross-examined about it, but the Commonwealth had to accept her answer because it was a collateral matter and therefore its probative value was substantially outweighed by its unfair prejudicial effect on D. Matters are collateral when the cross-examining party would not be entitled to prove it during their case-in-chief.
Porter (VSC, June 6, 2008)- Trial court did not err in allowing the Commonwealth to present evidence that the D was a convicted violent felon. The evidence was admissible to show motive to kill the officer, as well as evidence of an element of the offense- that D killed the officer to prevent him from performing his duties, which would have included arresting D for possession a firearm as a violent felon.
Burnette, COA, published July 31, 2012. Evidence of other offenses is admitted if it shows the conduct and feeling of the accused toward his victim, if it establishes their prior relations, or if it tends to prove any relevant element of the offense charged. Admission of evidence under these exceptions, however, is subject to the further requirement that the legitimate probative value of the evidence must exceed the incidental prejudice caused the defendant. Further, the admission of such “other crimes” evidence is prohibited when its only purpose is to show that the defendant has a propensity to commit crimes or a particular type of crime and, therefore, probably committed the offense for which he is being tried.
Bad Acts- Federal Reasoning
Branch (4th Cir, August 2008)- government may use evidence of prior drug distributions to show D’s intent to distribute. Cites U.S. v. Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004), which has good law.
Siegel (4th Cir., August 12, 2008)- long discussion of when other crimes evidence is admissible under federal rules.
Bad Acts- MO
Spencer, 240 Va. 78 (1990)- evidence of other crimes, to qualify for admission as proof of modus operandi, need not bear such an exact resemblance to the crime on trial as to constitute a “signature”. Rather, it is sufficient if the other crimes bear “a singular strong resemblance to the pattern of the offense charged.” That test is met where the other incidents are “sufficiently idiosyncratic to permit an inference of pattern for purposes of proof,” id., thus tending to establish the probability of a common perpetrator.
Bad Acts- Sex Cases
Ortiz (VSC, October 31, 2008)- D tried and convicted for raping his granddaughter. D argued that evidence of sexual acts beyond indictment period, and other physical evidence was inadmissible bad acts evidence. The Court ruled that the evidence showed the attitude of D toward the victim, established the relationship between the parties, and the physical evidence corroborated the victim’s testimony. Case includes good discussion
Best Evidence
Turman (COA, unpublished, September 25, 2007)- V explained that she didn’t think to printout instant message, and it was erased when she closed AOL- this was sufficient explanation for why “best evidence” was unavailable.
Brown, COA, published May 12, 2009- in a grand larceny trial, store security guard testified about what he observed on the store surveillance video. D objected that the testimony was inadmissible under the best evidence rule. The Court disagreed, stating that in Virginia, the best evidence rule applies only to writings. In a footnote, the Court stated that the Federal Rules of Evidence expand the rule to include videotapes, and 42 states rules’ do the same. But, Virginia follows the common law, which applied only to writings.
Midkiff, COA, published June 30, 2009- child porn case in which police seized D’s computer and turned it over to forensics. Forensics uploaded images to DVD, and then onto a CD. D objected to CD’s admission, arguing that the computer hard drive is the best evidence. COA disagreed- in Virginia, best evidence rule applies only to writings, so the images and movies at issue here did not come under the BER.
The COA also discussed authentication of computer files.
AFFIRMED BY VSC ON JUNE 14, 2010.
Dalton, COA, published March 31, 2015. Text messages constitute “writings.”
Causation
Good discussion of “but for” causation.
Character Evidence
Argenbright, COA, published September 7, 2010- a person on trial for a criminal offense has the right to introduce evidence of his reputation for pertinent character traits on the theory that it is improbable that a person who has a good reputation for such traits would be likely to commit the crime charged against him. “Evidence of larceny involves ‘the perpetrator’s character for truth,’” and “stealing is a crime ‘of that character which men generally are not found to commit unless when so depraved as to render it extremely probable that he will not speak the truth. A defendant may also introduce character if his character for truthfulness is impeached. The accused, in order to establish good character, is not permitted to prove specific acts, custom or course of conduct. Essentially, “[character] witnesses are not permitted to testify about anything except hearsay. . . . They are [only] permitted to summarize what they have heard in their community.”
Trial court did not err in excluding D’s proferred character witnesses, as four of them would have testified to specific instances and the fifth merely said D’s reputation was as a “good guy.”
Barlow, 224 Va. 338 (1982)- re: character evidence related to violence.
Gardner, VSC, published June 5, 2014– reputation evidence not limited to what is known before the alleged offense.
Chain of Custody
Pope, COA, published July 31, 2012. Commonwealth need only provide reasonable assurance that the evidence presented at trial was in same condition as it was when collected. Any gap in the chain normally goes to the weight, rather than the admissibility.
Dinkins, COA, published April 19, 2005- discussion of chain of custody rule.
Circumstantial Cases
Hamilton v.Commonwealth, 16 Va. App. 751, 755 (1995)- Comm need only exclude those reasonable hypotheses of innocence flowing from the evidence, not the imagination of the defendant.
Hughes, 18 Va. App. 510 (1994)- Appellant would have the court consider otherwise innocent circumstances in isolation and conclude that each circumstance standing alone proved nothing concerning his guilt. But that approach denies reality. Circumstances do not exist in isolation of one another but exist together with every other proven fact and circumstance in the case.
Competency to Testify
Ortiz (October 31, 2008)- 9-year-old victim testified against Ortiz. In deciding whether a child witness is competent to testify, the trial judge must consider the child’s age, his intelligence or lack of intelligence, and his sense of moral and legal responsibility.
Consciousness of Guilt
Kinard (unpublished, November 20, 2007)- D was arrested for attempted grand larceny. Police found a BB gun that looked like a real pistol near his arrest, and D admitted he’d abandoned it shortly before he was taken into custody. This was admissible because it may be inferred that D intended to use it as a means to continue the crime or as a means of escape. Acts committed after the crime are admissible to show consciousness of guilt.
Consciousness of Guilt- Flight
Turman (COA, unpublished, September 25, 2007)- not error to instruct jury that they may consider D’s flight from crime scene. Flight is not limited to leaving the jurisdiction, but includes any attempt to disguise oneself or distance oneself from crime.
Corroborating Confessions
Magruder (VSC, February 29, 2008)- in a companion case, the defendant argued that the Commonwealth failed to corroborate his confession. It is not necessary that there be independent corroboration of all the contents of the confession, or even of all the elements of he crime. The requirement of corroboration is limited to the facts constituting the corpus delicti. D confession that he had purchased the cocaine in DC and brought to VA was corroborated by the quantity of drugs, scales, etc. found at his apartment.
Allen, VSC, published January 10, 2014- Distinguishes defendants’ admissions from full confessions supplying all of the elements of the crime for the purpose of “slight corroboration.” Lists situations satisfying and not satisfying the rule.
Criminal Enterprise
Dunaway (COA, published July 15, 2008)- good summary of definitions with case citations. An organization can be a loosely-knit association of members linked only by their mutual interest in sustaining the overall enterprise. The ordinary meaning of the word “organizer” doesn’t carry with it the implication that the organizer is necessarily able to control those whom he or she organizes.
Deadly Weapons
Justiss, COA, published December 11, 2012- BB gun was deadly weapon. A deadly weapon is one which is likely to produce death or great bodily injury from the manner in which it is used, and whether a weapon is to be regarded as deadly often depends more on the manner in which it has been used than on its intrinsic character.
Defendant’s Statements
Jones (COA, published October 2, 2007)- Comm cannot use only portions of D’s statement.
Experts
Kilby (COA, published July 29, 2008)- To qualify as an expert the witness needs only to have a degree of knowledge beyond that of persons of common intelligence and ordinary experience, such that the witness could assist the trier of fact. An expert witness may acquire the knowledge in a number of ways, including participation in a vocation, not just through formal training.
Jones, COA, published May 26, 2009- forensic pathologist testified about cause of death based on her observations during autopsy. On cross, she admitted that she’d relied on a UVA Medical report that was not in evidence during the autoposy, but said that she would draw the same conclusions based on her own observations.
Sanders, VSC, published June 9, 2011. Footnote in opinion states the law on evidence that experts may rely on in criminal cases. That issue was not on appeal in this case.
Justiss, COA, published December 11, 2012. Summarizes law regarding experts and reverses conviction where expert testified to the ultimate fact in issue. Virginia’s appellate courts have, for many years, applied the rule [prohibiting expert testimony as to the ultimate issue in fact] to bar testimony about factual conclusions, where those conclusions are central to the decision in the case. Thus, although the question posed did not recite the test for a deadly weapon verbatim, the question, coupled with the answer it ultimately invoked placed before the jury an opinion as to how they should resolve the central factual issue in the case, and thus the question and its answer invaded the province of the jury.
Fingerprints
Winslow, COA, published December 23, 2014. “the circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime need not be circumstances completely independent of the fingerprint, and may properly include circumstances such as the location of the print, the character of the place or premises where it was found and the accessibility of the general public to the object on which the print was impressed. A latent fingerprint found at the scene of the crime, shown to be that of an accused, tends to show that he was at the sceneof the crime. The attendant circumstances with respect to the print may show that he was at the scene of the crime at the time it was committed. If they do so show, it is a rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, that the accused was the criminal agent.”
Flight
Turman (VSC, published October 31, 2008)- D convicted of rape. He left the victim’s apartment because she demanded that he leave. The jury was given a flight instruction nearly identical to the model instruction. The COA ruled that the instruction was given in error because there was not more than a scintilla of evidence showing that D left the apartment to avoid detection or arrest. The Court also pointed out the model instruction is an incorrect statement of the law because of first clause includes all people who leave the scene of the crime, not just those who leave to avoid detection.
Hearsay- Business Records
Dickens (COA, published July 29, 2008)- sex offender registry records fall within the business records exception.
Guerra-Sandoval v. Commonwealth (unpublished, August 7, 2007)- not error to admit NCIC report to establish prior because police relied on those records- comes in under business records.
Cooper, COA, published August 11, 2009- Commonwealth introduced NCIC record to establish a gun was reported stolen. Court provided good overview of Frye and the distinction between the official records exception and the business records exception.
Joyce, COA, published August 10, 2010- Commonwealth introduced conviction order that D claimed was irrelevant because it did not identify him. Commonwealth introduced VCIN report for limited purpose of showing that name in order was one of D’s aliases. Police testified to their routine reliance. Conviction sustained based on Frye and Cooper.
Hearsay- Computer Records
Godoy, COA, published May 28, 2013. Records generated solely by computers are outside the scope of the hearsay rule. Reliability is the only consideration.
Hearsay- Context of Investigation
Swann, COA, unpublished, August 19, 2014- Detective permitted to testify regarding contents of tip. Commonwealth argued that it was to explain his conduct. COA held that the testimony was inadmissible: permitting law enforcement officers “to narrate the course of their investigations, and thus spread before juries . . . information that is not subject to cross-examination, would go far toward abrogating [an accused’s] rights under the [S]ixth [A]mendment and the hearsay rule.” United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004); see also United States v. Maher, 454 F.3d 13, 22 (1st Cir. 2006) (“The [Commonwealth’s] articulated justification—that a[] statement by an informant to police which sets context for the police investigation is not offered for the truth of the statement and thus not within Crawford—is impossibly overbroad” and has an “added bite” where it is used in an attempt “to circumvent Crawford’s constitutional rule.”)
Hearsay- Dying Declarations
Satterwhite, COA, published July 27, 2010- dying declaration case. V identified D as the shooter. This was done while V’s girlfriend was on the phone with 911 and the operator heard the statement. V made same statement to paramedics. COA held that Crawford did not change the rule that dying declaration are admissible in criminal cases.
Hearsay (Electronic Statements)
Turman (COA, unpublished, September 25, 2007)- need only prove identity of declarant by preponderance. V could testify to IM sent from screen name that D admitted was his and made statement in message consistent with his behavior during rape.
Hearsay (Excited Utterance)
Caison (COA, published July 29, 2008)- D stabbed V during a fight. A witness called 911 and gave an account of what happened, V’s injuries and described D and provided his name. The 911 tape was admitted during D’s manslaughter trial over his objection. A statement fits under this exception when the statement is spontaneous and impulsive, thus guaranteeing its reliability. The statement must be prompted by a startling event and be made at such a time to preclude the presumption that it was made as a result of deliberation. Also, the declarant must have firsthand knowledge of the event. The fact that the statements were made in response to the 911 operator’s questions does not exclude them from this exception. However, if the questions or questioner influenced the response, then this would detract from the statements’ reliability and may take them out of the exception. These statements qualified as excited utterances.
Witness made statements about two minutes after an auto accident in response to another witness’s question: “What happened?”. “Although not controlling, the lapse of time between the ‘startling event’ and a declaration offered in evidence is relevant to a determination whether the – 9 – declaration was spontaneous and instinctive, or premeditated and deliberative.” Also relevant to the consideration is “whether the declarant made an exclamation impulsively on his own initiative, or a statement in response to a question.”
Court ruled there was no error in admitting the statements as excited utterances.
Hearsay- Medical Treatment
Campos, COA, published June 13, 2017- During CPS investigation, child victim made statements accusing D of sexually abusing her. Trial court allowed Commonwealth to introduce the entire interview.
Court clarified that, unlike the Federal Rules, which sought to replace common law, Virginia’s simply codified existing common law rules of evidence. (“[D]epatures from the pre-codification case law create uncertainty as to the content of the ‘real’ Virginia evidence rule: is it the codified rule or the rule that appeared in the pre-codification case law?”). Professor Bellin specifically references Rule 2:803(4) as an example of a codified rule that “is broader and, in at least one respect, inconsistent with pre-codification case law.” Id.; see also id. at 144 (“[W]hile the Virginia Supreme Court’s pronouncements on this exception are few, the extant Virginia case law seems significantly narrower than the codified rule.”).
The Court reviewed Cartera, Jenkins, and Lawlor. The Court concluded that those opinions provide a non-hearsay basis for admission- that they show the basis for the physician’s opinion. In addition, those “cases acknowledge a true hearsay exception that permits a hearsay statement made for the purpose of medical diagnosis or treatment to be introduced for its truth.” Reliability is the “touchstone” and that requires the court’s to look at the declarant’s motive, rather than the provider’s motive.
“In sum, for a hearsay statement to be admissible under Virginia Rule 2:803(4), the declarant must make it for purposes of medical diagnosis or treatment, it must fit at least one of the three types of admissible statements and be reasonably pertinent to diagnosis or treatment, and it must be reliable.” The Court found that the statements were made for the purpose of medical treatment, and that in child sex cases, assignments of fault were admissible because they have a purpose in treating the child.
Hearsay (Past Recollection Recorded)
Abney (COA, published March 4, 2008)- at D’s trial related to a 24 year-old murder, Commonwealth admitted an affidavit provided by a witness who had no independent recollection of portions of that affidavit at trial. The requirements for admission under this exception are: 1) the witness must have firsthand knowledge of the event; 2) must be an original memorandum made at or near the time of the event, when the witness had a clear memory of it; 3) the witness must lack an independent memory of the event; and 4) the witness must vouch for the accuracy of the memorandum. It does not have to be recorded by the witness- if someone else recorded it and the witness has examined it and is known to him to be accurate then it is admissible. As to the second element, whether it was “near” the time of the event depends on the facts- a recorded statement concerning an intimate relationship made 10 months later is admissible.
Hearsay (Public Records Exception)
Adjei, COA, published September 23, 2014. Under this exception, “[c]opies of records . . . of the United States . . . shall be received as prima facie evidence provided that such copies are authenticated to be true copies either by the custodian thereof or by the person to whom the custodian reports, if they are different.” Code § 8.01-390(A); see also Rule 2:803(8). “A ‘custodian’ is ‘one entrusted officially with guarding and keeping (. . . property, artifacts, [or] records).’”
“In order to qualify under the exception for official written records, a document must be prepared by a public official and made in the course of that person’s public duties. Taylor v.
Maritime Overseas Corp., 224 Va. 562, 565, 299 S.E.2d 340, 341 (1983); Williams, 35 Va. App. at 552, 546 S.E.2d at 739. The exception “does not extend to statements not within the personal knowledge and observation of the recording official.” Similarly, the exception does not encompass statements of opinion.
Hearsay (Statements Against Penal Interest)
Bailey, COA, published November 5, 2013. The statement-against-penal-interest exception requires the proponent to prove, in addition to unavailability, (1) that “the statement [was] against the declarant’s interest at the time it was made[] and . . . the declarant [was] subjectively aware [of this fact]” and (2) that “the record . . . contain[s] evidence other than the declaration itself establishing its reliability, such as independent evidence connecting the declarant with the confessed crime.”
Hearsay (Videotaped Statements)
Jones (COA, published October 2, 2007)- it was not hearsay to admit D’s statement to police because it was not prove truth of matters asserted, but instead it was to prove what happened when D made these statements.
The circumstances surrounding a statement can be relevant to credibility.
Hostile Witnesses
Teleguz v. Commonwealth, 273 Va. 458, 479, 643 S.E.2d 708, 722 (2007). “[A] person may be considered a hostile witness if his testimony surprises the party who called the person to testify at trial.”
Identity
Bowman, 30 Va. App. 298 (1999)- witness was permitted to give his opinion that D was person depicted in photo stills.
Inconsistent Statements
Jones (COA, published October 2, 2007)- failure to assert a fact when it would be natural to assert that fact is in essence an assertion of the non-existence of that fact. Such conduct is prima facie, an inconsistency. A witness may explain why facts were not included in a previous statement. When D explained absence of facts in his statement to the police by alleging he was under duress, it was error for the trial court not to play the video of the statement.
Intent to Defraud
Austin, COA, published April 10, 2012- D put stop payment on checks to two different vendors. Only issue at trial was intent to defraud (false pretense not preserved). Court listed circumstances past cases have found to demonstrate intent to defraud, and held that there was sufficient evidence supporting D’s convictions.
Objections-Waiver
Cox, COA, published December 1, 2015. “The rule is that where an accused unsuccessfully objects to evidence which he considers improper and then on his own behalf introduces evidence of the same character, he thereby waives his objection, and we cannot reverse for the alleged error.” Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970) (emphasis added). The Court will not “notice error which has been invited by the party seeking to take advantage thereof on appeal.” Id. at 400, 177 S.E.2d at 638. Nevertheless, Virginia courts have never held that the mere cross-examination of a witness or the introduction of rebuttal evidence, either or both, will constitute a waiver of an exception to testimony which has been duly taken. To constitute such a waiver the party objecting to the evidence must have gone further and introduced on his own behalf testimony similar to that to which the objection applies. Culbertson v. Commonwealth, 137 Va. 752, 757, 119 S.E. 87, 88 (1923).
Polygraph
Fowlkes (COA, published, July 8, 2008)- Because a polygraph examination has no proper evidentiary use, neither the results of a polygraph, nor evidence of a person’s willingness or unwillingness to submit to a polygraph is admissible in court. Evidence concerning a polygraph is not admissible to establish the guilt or innocence of an accused or to impeach a witness’ credibility.
Prejudicial Evidence
Caison (COA, published July 29, 2008)- D claimed 911 tape containing sounds of crying witnesses and the moaning victim were inadmissible because the prejudice to D outweighed the probative value. All evidence tending to prove guilt is prejudicial. Virginia law intervenes only when the alleged prejudice tends to inflame irrational emotions or lead to irrational inferences. Even then, it becomes a matter of degree.
Present Sense Impression
Wilder, COA, published January 19, 2010- Homeless man called 911 and said he saw two men break into a building, described how they were transporting the stolen goods and the location. He left his name. Officers located D and co-D, who met the description. In order to fit within the PSI exception, 1) declaration must be contemporaneous with the act, 2) must explain the act and 3) must be spontaneous. Statements indicated they were in present tense. Although some of the statements related to a past act, this in itself did not render the statements inadmissible. The trustworthiness of the assertion arises from its timing. The requirement of contemporaneousness, or near contemporaneousness, reduces the chance of premeditated prevarication or loss of memory. A spontaneous declaration is “[a] statement that is made without time to reflect or fabricate and is related to the circumstances of the perceived occurrence.” Since the statements related to a crime in progress, there was no time for reflection or fabrication.
Prior Convictions
Palmer, 269 Va. 203 (2005)- The trial court admitted an exhibit showing that D had been charged with three felonies as a juvenile and had received sentences. However, the document did not specify a conviction. A judgment order must reflect, among other things, the plea of the defendant, the verdict or findings of the fact finder, and the adjudication and sentence of the court. The mere notation of a sentence, although suggestive of a conviction, does not establish the fact or nature of any conviction.
Commonwealth introduced delinquency adjudication to establish firearm by felon charge. They did not introduce the dispositional order. COA ruled that it was sufficient to establish the conviction, and said that the language in Palmer related to sentencing was dicta.
Mwangi, VSC, published February 27, 2009- D convicted of DUI third w/in five years. Commonwealth introduced DMV transcript showing two prior DUI convictions. It also introduced a summons purporting to prove one of those convictions. The summons lacked a judge’s signature. In a court-not-of-record, a judge’s signature proves the rendition of judgment. The DMV transcript established the priors, but the unsigned GDC summons refuted the evidence of one of those convictions.
Brittle, COA, published August 11, 2009- D procedurally defaulted in argument that trial court erred in admitting larceny priors, but COA summarizes relevant case law.
Dean, COA, published December 4, 2012. Summarizes law regarding “substantially similar” convictions.
Dillsworth, COA, published May 14, 2013. If the out of state prior conviction relied on as a predicate offense specifices the provision under which D was convicted, only that specific provision must be substantially similar to Virginia law.
Old Chief v. United States, 519 U.S. 172 (1997). D offered to stipulate that his prior met statutory definition for firearm possession charge. Government refused it. USC held that, in light of offer to stipulate, admission of the prior should have been barred under Rule 404(b).
VSC, in Boone, published April 13, 2013, declined to rule whether Old Chief affected validity of Glover, which had a contrary ruling.
Farmer, COA, published August 8, 2013. Domestic third case. Priors indicated on back of warrant the judge tried and found D guilty as charged and sentenced D. D challenged admissibility on grounds that the orders did not reflect the plea and did not state that D was present. Evidence is competent for purposes of proving a prior conviction when that evidence requires “[n]o conjecture or surmise . . . to reach [the] conclusion” that the defendant had indeed been convicted of the predicate offense or offenses. Conversely, evidence is inadmissible for the purpose of proving a predicate offense when that evidence does not “permit the finder of fact to make an inference that the defendant had been convicted of” the required prior offense or offenses. Priors were admissible.
Court also discussed admissibility under 19.2-307 and distinguished facts from Bellinger.
Hall, COA, published November 10, 2015- identify of names carries with it a presumption of identity of person, the strength of which will vary with the circumstances.
Prior False Accusations of Sexual Abuse
Roadcap (COA, published December 18, 2007)- generally, prior false accusations of sexual abuse are admissible in defense to a later charge of sexual abuse. The court must first make a threshold finding that there is a reasonable probability that the earlier accusations were false. Mere denial by the subject of the earlier accusations is insufficient. In this case, no evidence presented showing that they were false, and in fact Roadcap himself thought they were true because he reported them to DSS.
Prior Testimony
Harris (COA, published November 4, 2008)- Robbery case, where the victim testified at an earlier court date, while the defense attorney was present (but without the defendant, who had failed to appear) that he would be returning to Mexico in several days, and he also testified about the robbery. After D was picked up, the victim didn’t appear at the trial. His subpoena wasn’t found, and an officer was unable to locate him at his address. The trial court ruled that D’s failure to appear constituted a waiver of his right to be present and confront this witness, and admitted the victim’s earlier testimony into evidence. There are 4 requirements for the admission of prior testimony: 1) witness must be unavailable; 2) the prior testimony must have been under oath; 3) prior testimony was accurately recorded or the person describing the testimony must be able to recite it with clarity and in detail; 4) the party against whom its offered was present, and afforded the ability to cross-examine the witness. The COA held that the Commonwealth satisfied all 4 requirements.
Turner, VSC, published June 7, 2012- set out the four elements for admission, but stated that when the declarant is supposedly unavailable due to lack of memory, the court must inquire to determine whether the lack of memory is feigned.
Proffers
Creamer, COA, published January 13, 2015. Summarizes rules.
Rape Shield
Ortiz (VSC, October 31, 2008)- To be admissible under the motive to fabricate exception, the proffered evidence of sexual conduct must show a pattern of behavior by the victim that directly relates to the conduct charged in the case on trial. In this case, there was no nexus to make the evidence probative and relevant of a motive to fabricate- the complaint against Manuel involved only touching, and was later amended to touching, but “not in a bad way”, whereas the complaint against Ortiz involved repeated instances of intercourse.
The Court also addressed the argument that her statements related to prior sexual conduct were admissible as prior statements for impeachment purposes. In order to do this, the defendant must establish, with reasonable probability, that the statements were false. Ortiz, by contrast, attempted to prove that the statements regarding Manuel were true, and so the statements were inadmissible.
Recent Complaint
Williams (COA, unpublished, October 14, 2008)- V wrote a letter to her counselor 20 months after the offense. Comm. sought to admit letter as recent complaint evidence. V’s explanation for the delay was that 1) she didn’t think anyone would believe her and 2) she was close to her niece, who was D’s daughter- she didn’t want her father going to jail. Court held that this was a sufficient explanation for the delay. The Court also noted that there is no requirement that there be a familial or supervisory relationship between D and V in order to explain a delay of such length.
Recollection Refreshed
Davis, COA, published November 24, 2015. Permissible to review an inadmissible document to refresh a witness’s recollection.
Same Evidence Rule
Isaac, COA, published May 10, 2011. Overview of rules and exceptions.
Scientific Evidence
Billups (VSC, November 2, 2007)- the proponent of scientific evidence has the burden of showing that the offered scientific method is reliable. This standard also applies at sentencing.
Sentencing Evidence
Ngomondjami, COA, published June 30, 2009- D argued that Commonwealth couldn’t introduce DMV transcript at sentencing b/c they didn’t give him notice pursuant to § 19.2-295.1. COA disagreed- stating that § 46.2-943, which is a more specific statute, makes DMV transcripts admissible and does not contain a notice requirement.
Jones, COA, published July 28, 2009- D tried to present evidence that he’d been incarcerated for the same charges in the past, and that those charges had been NPed. Trial court did not err in excluding that evidence as irrelevant. Non-capital sentencing evidence should be evaluated using the capital sentencing statute: 19.2-264.4(B).
Statements to Jury
Lilly (COA, published July 31, 2007)- not error to prevent D counsel from mentioning mandatory minimum sentencing because it’s the jury’s job to follow the law, not to question it.
Testimony
Zoretic, 13 Va. App. 241. D given money to make controlled buy. D took off and didn’t turn over any drugs. D said that he gave the money to the dealer but later said acknowledged owing the police the money. D’s statement was uncontradicted. Uncontradicted testimony should ordinarily be accepted as true unless “it is inherently improbable, inconsistent with circumstances in evidence, or somewhat contradictory in itself, especially where the witness is a party.”
Third Party Guilt
Ramsey, COA, published May 13, 2014- In Virginia, evidence that a crime was actually committed by someone other than the accused is admissible for the purpose of generating a reasonable doubt of the guilt of the accused. “Once the appropriate nexus between a third party and the offense at bar has been established, evidence of the third party’s guilt is to be liberally received by the trial court.”
[O]nly ‘where there is a trend of facts and circumstances tending clearly to point out some other person as the guilty party, may the [defendant] introduce any legal evidence which is available tending to prove that another person committed the crime with which he is charged.’” Id. (quoting Karnes, 125 Va. at 766, 99 S.E. at 565). Such proffered evidence need only raise a question for the jury whether reasonable doubt of Ramsey’s guilt existed, not whether the proffered evidence was sufficient to prove a third person committed the offenses.
Transferred Intent
Blow (August 19, 2008)- D stabbed his wife multiple times. His daughter was in the room while this was happening, and she jumped on his back and tried to grab the knife, which resulted in a cut on her hand from D’s knife. D was convicted of maliciously wounding his daughter under the transferred intent doctrine. The doctrine permits a fact finder to transpose a defendant’s criminal intent to harm an intended victim to another unintended, but harmed, victim. In other words, a defendant is not absolved of criminal liability merely because he has the misfortune to harm a bystander rather than the intended victim. Since the harm to his daughter occurred during the ongoing attack, it was part of the res gestae of the attack on his wife. Furthermore, the COA said the Virginia law states that when a D successfully harms an intended victim, while also harming an unintended victim, the transferred intent doctrine applies.
Blow also argued that transferred intent should only apply to shootings, not stabbings. The Court said that he hadn’t adequately presented the issue, so it did not decide it. It did, however, suggest that it was a “distinction without a difference.”
Crawley, 25 Va. App. 768 (1997)- transferred intent does not apply when D successfully injures the intended victim and does not injure unintended victim.
Unavailability of Witness
Harris (COA, published November 4, 2008)- Where unavailability is premised on a witness’s absence from trial, the party offering the prior testimony must demonstrate due diligence and reasonable efforts to obtain the presence of the witness. Due diligence requires only a good faith, reasonable effort, it does not require that every possibility, no matter how remote, is exhausted.
Turner, VSC, published June 7, 2012- unavailability due to lack of memory must be examined by trial court to determine whether lack of memory is feigned.
Willfulness
Pelloni, COA, published February 2, 2016. Good discussion of case law.
Richard Collins is an attorney at Collins & Hyman, PLC, with offices in Williamsburg and Newport News.
The material in this post is for informational purposes only and should not be utilized as legal advice. In order to properly analyze the contents as related to your specific circumstances, a consultation would be necessary.