863 S.E.2d 13
Va. Ct. App.2021Background
- Davis was indicted for first-degree murder, conspiracy to commit murder, aggravated malicious wounding, and related firearm offenses after a July 3, 2019 convenience-store double shooting that left Barnett dead and de la Cruz wounded.
- About a week earlier Davis and co-defendant Rustam Fardin had robbed Barnett during an attempted drug sale; Barnett later posted social-media comments insulting Davis.
- On the day of the shooting, Davis told a friend he intended to shoot Barnett; Davis, Fardin, and another associate met and drove together before the shooting.
- Destiny Heiston testified that Fardin used her Snapchat account to message Barnett and to ask her to contact Barnett about buying Xanax; transcripts of Snapchat messages were admitted at trial.
- The circuit court conditionally admitted Fardin’s out-of-court statements under the co-conspirator hearsay exception; at the close of the Commonwealth’s case the court struck the conspiracy count but refused to exclude Fardin’s statements, finding them admissible as communications between the parties.
- The jury convicted Davis of first-degree murder, aggravated malicious wounding, and two firearm offenses; on appeal Davis argued the contested statements were inadmissible hearsay because the Commonwealth failed to establish a conspiracy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court erred in admitting Fardin’s out‑of‑court Snapchat statements as hearsay/co‑conspirator statements | Davis: Statements were hearsay and inadmissible because Commonwealth failed to make out a prima facie conspiracy | Commonwealth: Statements admissible under co‑conspirator exception and also properly used for non‑truth purposes (showing communications) | The statements were not hearsay: many were non‑assertive inquiries/instructions and the assertive statements were offered for non‑truth purposes; admission was proper. Court affirms (also notes right‑result doctrine if co‑conspirator analysis applied). |
Key Cases Cited
- Fuller v. Commonwealth, 201 Va. 724 (1960) (out‑of‑court statements admissible to show parties’ conduct or explain subsequent actions)
- Winston v. Commonwealth, 268 Va. 564 (2004) (distinguishing when statements are offered for truth versus non‑truth purposes)
- Brown v. Commonwealth, 25 Va. App. 171 (1997) (statement must be an assertion to be hearsay)
- Donahue v. Commonwealth, 225 Va. 145 (1983) (admitted non‑hearsay material can be misused if later argued for its truth)
- Chandler v. Graffeo, 268 Va. 673 (2004) (explaining hearsay as evidence relying on out‑of‑court declarant’s veracity)
- Hodges v. Commonwealth, 272 Va. 418 (2006) (non‑truth uses of out‑of‑court statements may render them admissible)
- Perry v. Commonwealth, 280 Va. 572 (2010) (appellate court may affirm on correct alternative grounds)
- Thomas v. Commonwealth, 279 Va. 131 (2010) (admissibility reviewed for abuse of discretion)