Commonwealth v. Swann (ORDER)Commonwealth v. Swann (ORDER)
I. RELEVANT FACTS AND PROCEEDINGS
The two female victims in this case were in a hotel room in Arlington County when an unknown man forced his way into their room, tied them up, and robbed them of cash and other personal property. In reviewing hotel surveillance video from the night of the robbery as part of his investigation, Detective Don Fortunato of the Arlington County Police Department observed a man in the video who appeared to match the victims’ description of the
The police department then issued a news release to various regional media outlets that described the robbery, provided still photographs of the man shown in the hotel surveillance video, and asked anyone with information about the robbery or the identity of the suspect to call Detective Fortunato. Shortly thereafter, Fortunato received an anonymous tip from Crime Solvers identifying Swann as the possible perpetrator of the crime.1 There is no indication in the record that the police ever learned the identity of this anonymous caller.
Based on the anonymous tip implicating Swann, along with other information the police collected in its investigation, Swann was arrested and charged with two counts of abduction (
On cross-examination, defense counsel inquired about two other tips Fortunato received during his investigation. Specifically, defense counsel asked: “You got a phone call from someone saying that he read the paper and he thinks the [subject hotel] incident was Fred Harold?” Fortunato acknowledged that he did receive such a tip, but explained how he subsequently determined that this individual was at an area hospital at the time in question. Defense counsel also asked whether Fortunato had “received information about a similar crime in Fairfax” committed by a perpetrator who was still at large when the instant robbery occurred. Fortunato responded affirmatively.
On redirect, the Commonwealth requestеd a sidebar and argued that defense counsel had “opened the door” to questions regarding the content of the tip implicating Swann. The trial court agreed and permitted Fortunato, over defense counsel‘s objection, to testify that “[t]he caller had a good deal of information about Mr. Swann.” In addition, the court allowed Fortunato to testify that “[t]he caller stated that Mr. Swann told her that he had to lay low because of something that he did at an unknown hotel.”
The jury convicted Swann on all charges and the trial court imposed the sentences fixed by the jury. Swann appealed his
A three judge panel of the Court of Appeals agreed with Swann and then held that the error was not harmless. Swann v. Commonwealth, 2014 Va. App. LEXIS 282, at *13-21 (August 19, 2014) (unpublished). Specifically, applying the constitutional harmless error standard, the Court of Appeals determined there was “‘a reasonable possibility that the [erroneous admission of the anonymous tip] might have contributed to [Swann‘s] conviction[s],‘” and thus “conclude[d] that the Commonwealth‘s violation of [his] Confrontation Clause right was not harmless beyond a reasonable doubt.” Id. at *20 (quoting Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999)). The Court of Appeals therefore reversed Swann‘s convictions and remanded the case for retrial if the Commonwealth be so advised. The Cоmmonwealth timely appealed this ruling.
II. ANALYSIS
A. Non-constitutional Adjudication of Appeal
The doctrine of judicial restraint dictates that we decide cases “‘on the best and narrowest grounds available.‘” McGhee v. Commonwealth, 280 Va. 620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010) (quoting Air Courier Conference v. American Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring)). A fundamental and longstanding precept of this doctrine is that “unnecessary
Accordingly, because we conclude that, under Virginia non-constitutional evidentiary law, Detective Fortunato‘s disputed testimоny on redirect was inadmissible hearsay and the trial court‘s error in admitting it was not harmless, we need not decide whether admission of the testimony violated Swann‘s rights under the Sixth Amendment.
B. Inadmissible Hearsay
In a non-constitutional context, we review a trial court‘s rulings on whether to admit or exclude evidence under an abuse of discretion standard. Lawlor v. Commonwealth, 285 Va. 187, 229, 738 S.E.2d 847, 871 (2013); Thomas v. Commonwealth, 279 Va. 131, 168, 688 S.E.2d 220, 240 (2010). “‘Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.‘” Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (2005)). Under this standard, we hold that the trial court abused its discretion in admitting Detective Fortunato‘s disputed testimony, as it plainly constituted inadmissible hearsay.
Detective Fortunаto‘s disputed redirect testimony was not just hearsay, but “double hearsay,” because Fortunato testified as to the content of what the anonymous caller to Crime Solvers claimed Swann had told her – i.e., that “[t]he caller stated that Mr. Swann told her that he had to lay low because of something that he did at an unknown hotel.” See Service Steel Erectors Co. v. International Union of Operating Eng‘rs, 219 Va. 227, 236, 247 S.E.2d 370, 376 (1978) (upholding exclusion of proffered testimony consisting of “double hearsay“). As this Court has explained, in order for “double hearsay . . . to be admissible, ‘both the primary hearsay declaration and each hearsay declaration inсluded within it must conform to a recognized exception to the hearsay rule.‘” Riner v. Commonwealth, 268 Va. 296, 324, 601 S.E.2d 555, 571 (2004) (quoting with approval West v. Commonwealth, 12 Va. App. 906, 910, 407 S.E.2d 22, 24 (1991)). See also
The Commonwealth argues on brief that Fortunato‘s testimony reciting the content of the anonymous tip implicating Swann was not
To be sure, the prosecution may introduce evidence of a tip received by the police for the purpose of showing the reason for the police officers’ conduct in pursuing a particular individuаl as part of a criminal investigation. That is, such evidence may be offered, within limits, to establish the propriety of the investigation and not for the truth of the tipster‘s statement. Weeks v. Commonwealth, 248 Va. 460, 477, 450 S.E.2d 379, 390 (1994); Upchurch v. Commonwealth, 220 Va. 408, 410, 258 S.E.2d 506, 507-08 (1979). When that is the case, the evidence does not violate the hearsay rule.
The Commonwealth, however, is not in a position to advance this argument on appeal, which its counsel tacitly acknowledged to this Court during oral argument, in light of the prosecution‘s closing argument in this case. During closing argument, counsel for the Commonwealth argued to the jury: “Finally, and most importantly, we have two other pieces of evidence. First, Detective Fortunаto told you that the tip he received said that the defendant had to lay low because of something that he did at an unknown hotel. That‘s a statement of the defendant. You can consider that and you should consider that.” This argument belies the Commonwealth‘s contention on brief that the tip was not offered for its truth, аs the prosecution told the jury that Swann, in fact, made this incriminating statement and then indicated that the jury should consider the statement as evidence of Swann‘s guilt.
Consistent with the above-stated standard of review, “[o]nce a party has ‘opened the door’ to inquiry into a subject, the permissible scope of examination on the subject by the opposing party is ‘a mattеr for the exercise of discretion by the trial court,’ and we will not disturb the court‘s action on appeal unless it plainly appears that the court abused its discretion.” Savino v. Commonwealth, 239 Va. 534, 545, 391 S.E.2d 276, 282 (1990) (quoting Bunch v. Commonwealth, 225 Va. 423, 438, 304 S.E.2d 271, 279-80 (1983)). See Linwood Earl Briley v. Commonwealth, 221 Va. 532, 540, 273 S.E.2d 48, 53 (1980) (“Cross-examination on a part of a transaction enables the opposing party to elicit evidence on redirect examination of the whole transaction at least to the extent that it relates to the same subject.” (quoting United States v. Barrentine, 591 F.2d 1069, 1081 (5th Cir. 1979))).
The Commonwealth argues that during the cross-examination of Fortunato the defense “attack[ed] the reliability and diligence of the police investigation” in this case by questioning Fortunato about the tips hе received regarding two other potential suspects. This exchange, according to the Commonwealth, opened the door to Fortunato‘s redirect testimony concerning the tip about Swann, which was “aimed at showing the investigation was not deficient.” The Commonwealth thus concludes that the trial cоurt did not abuse
The Commonwealth‘s argument falls short, however, because defense counsel‘s cross-examination of Fortunato did not open the door as wide as the Commonwealth contends. During this cross-examination defense counsel asked only limited questions, and Fortunato provided very limited responses, about the tips concerning two other potential suspects – namely, one Fred Harold and some unnamed perpetrator of a similar crime in Fairfax who was still at large when the instant crime occurred. Fortunato merely explainеd that he determined that Harold was at an area hospital at the time in question and acknowledged that he had “received information” about the similar crime in Fairfax. We simply cannot say, under a principled application of Virginia‘s evidentiary and trial procedure doctrines, that such testimony оpened the door to the admission of the double hearsay contained in Fortunato‘s subsequent recitation of the actual content of the anonymous tip implicating Swann during redirect. In short, the double hearsay on redirect exceeded the scope of cross-examination. The trial court thus abused its discretion in admitting this hearsay into evidence over the defense‘s well-founded objection.
C. Harmless Error
Finally, we address the issue of harmless error. In concluding that the trial court‘s admission of Fortunato‘s disputed testimony violated Swann‘s Confrontation Clause rights and reversing his convictions, the Court of Appeals determined that the violation was not harmless error under the applicable constitutional standard. Here, the Commonwealth limits its
We have thus conducted a harmless error review under the non-constitutional standard, in keeping with our more narrow review of this appeal, and conclude that the erroneous admission of Fortunato‘s double hearsay testimony was not harmless. Under this standard, a non-constitutional error in a criminal case is harmless “‘[i]f, when all is said and done, . . . the error did not influence the jury, or had but slight effect.‘” Anderson v. Commonwealth, 282 Va. 457, 467, 717 S.E.2d 623, 628 (2011) (quoting Rose v. Commonwealth, 270 Va. 3, 12, 613 S.E.2d 454, 458 (2005)). However, if we “‘cannot say, with fair assurance, after pondеring all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the
Upon our review of the entire record, we cannot say with fair assurance that the jury was not substantially influenced by the erroneous admission into evidence of the substance of the tip imрlicating Swann through the testimony of Detective Fortunato - that is, testimony offered for the truth of the anonymous tipster‘s assertion that Swann said he had to “lay low because of something he did at an unknown hotel.” Indeed, in closing argument, the Commonwealth made clear the importance of the content of the tiр by arguing that it was one of the prosecution‘s “most important[]” pieces of evidence for proving Swann‘s guilt. Thus, we are compelled to conclude that the error in admitting this evidence was not harmless.
III. CONCLUSION
The Court of Appeals decided this case on the basis that the admission into evidence of Detective Fortunato‘s disputed testimony violated Swann‘s Sixth Amendment Confrontation Clause rights. We need not resolve that issue in light of our limited holding that the testimony constituted inadmissible hearsay and its admission was not harmless under non-constitutional principles. Thus, we vacate that portion of the judgment of the Court of Appeals holding thаt Swann‘s constitutional rights were violated. Further, based on our limited holding in this case, we affirm that part of the Court of Appeals’ judgment reversing Swann‘s convictions and remanding the case for retrial if the Commonwealth be so advised.
A Copy,
Teste:
Patricia L. Harrington, Clerk