Commonwealth v. Swann (ORDER)
290 Va. 194
| Va. | 2015Background
- Two women were robbed and tied up in an Arlington County hotel room; hotel surveillance video was reviewed and a man matching the victims' description was identified on the tape.
- Police released still photos and requested tips; an anonymous Crime Solvers tip identified Storme Gary Swann as a suspect.
- Detective Fortunato would only stipulate pretrial that he received a tip pointing to Swann, but at trial initially testified only that he received a tip and investigated Swann.
- On cross, defense elicited limited testimony about other tips; on redirect the court allowed Fortunato, over objection, to recount the substance of the anonymous tip (that Swann said he had to “lay low because of something he did at an unknown hotel”).
- Swann was convicted; the Court of Appeals reversed based on a Confrontation Clause violation. The Virginia Supreme Court affirmed reversal on narrower non-constitutional grounds: the redirect testimony was inadmissible double hearsay and its admission was not harmless error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Fortunato's testimony recounting content of anonymous tip | Commonwealth: testimony explained why police focused on Swann (not offered for truth); alternatively, defense opened the door | Swann: testimony was hearsay/double hearsay and admission violated confrontation rights | Court: testimony was double hearsay; inadmissible under hearsay rules and exceeded scope of redirect; admission was error |
| Whether defendant "opened the door" to content of anonymous tip by cross-examining about other tips | Commonwealth: cross about other tips attacked investigation and justified limited rebuttal to show investigation was adequate | Swann: cross did not open door to recitation of tip substance; defense limited questioning did not invite double hearsay | Court: cross did not open the door to the tip's substantive content; redirect exceeded scope of cross-examination |
| Harmless-error analysis (non-constitutional standard) | Commonwealth: challenges only admissibility; argues error was harmless | Swann: erroneous admission likely influenced jury; not harmless | Court: under Code § 8.01-678 non-constitutional harmless-error review, cannot say jury was not substantially swayed; error not harmless |
| Need to reach Confrontation Clause claim | Commonwealth: Court of Appeals relied on Confrontation Clause; Commonwealth appealed | Swann: raised constitutional claim below | Court: declined to decide constitutional issue under judicial restraint after resolving case on narrower evidentiary grounds |
Key Cases Cited
- McGhee v. Commonwealth, 280 Va. 620 (2010) (favor deciding cases on narrowest available grounds)
- Air Courier Conference v. American Postal Workers Union, 498 U.S. 517 (1991) (judicial restraint and avoiding unnecessary constitutional decision)
- Jenkins v. Commonwealth, 254 Va. 333 (1997) (common-law definition of hearsay)
- Riner v. Commonwealth, 268 Va. 296 (2004) (double hearsay admissible only if each level fits an exception)
- Service Steel Erectors Co. v. Int’l Union of Operating Eng’rs, 219 Va. 227 (1978) (approved exclusion of double hearsay)
- Weeks v. Commonwealth, 248 Va. 460 (1994) (police tips may be admissible to explain investigation, not for truth)
- Savino v. Commonwealth, 239 Va. 534 (1990) (scope of redirect after door opened is discretionary with trial court)
- Anderson v. Commonwealth, 282 Va. 457 (2011) (non-constitutional harmless-error standard guidance)