Crawford v. CommonwealthCrawford v. Commonwealth
Lead Opinion
BACKGROUND
On Thursday, November 18, 2004, John and Irene Powers (“the Powers”) had dinner with their thirty-three-year-old daughter, Sarah Crawford (“Sarah”) at a local restaurant in Manassas, Virginia. When they left the restaurant that night at about 8:30 pm, it would be the last time that they would see their daughter alive. Twelve hours later Sarah would be dead, and her husband, the appellant, Anthony Dale Crawford (“Crawford”) would be wanted for her murder.
The Powers had a “very close” relationship with their daughter and saw her frequently. Sarah and her mother talked on the phone often. During dinner, Sarah told her parents of the latest events in her life, including her job as an office manager for a television production company. Sarah mentioned to her mother that she had a hair appointment on Saturday and that, on Saturday afternoon, she had plans to go to a concert with a man she recently met. Sarah was, according to her mother, “really very happy” that night.
Sarah had every reason to be happy. She had a good job with a small, close-knit company that she enjoyed and found fulfilling. She had gastric bypass surgery in the summer of 2002 and reached her goal of losing one hundred and fifty pounds. In addition, Sarah had just gotten a raise and moved into her own apartment. And, most significantly, Sarah had recently decided to end her relationship with her abusive husband, Crawford.
Sarah and Crawford had been married since 1999, and had been together for several years before that. The couple had a troubled history, and Sarah was growing increasingly fearful of her husband. In October
On October 29, 2004, Sarah and the Powers went to Crawford’s apartment to pick up a few of Sarah’s things.
Eventually, the police officers left the apartment, but, sensing that things might not remain peaceful, they remained nearby. After the officers left, Sarah mentioned that she wanted a side table that her parents had given her, and she asked Crawford to unlock the bedroom door so she could retrieve it. Instead of unlocking the door, Crawford said that he would get the table. Mr. Powers was packing up some of Sarah’s belongings, when he heard Crawford say, “Here’s your god-damned table” and the table “came flying over [Mr. Powers’] right shoulder and ... landed near the sofa and broke____” At that point, the Powers called the police and the same officers immediately responded. The police stayed until Sarah and her family finished packing her things, and then followed them for about a mile to make sure that they got away safely.
Following her encounter with Crawford at the apartment, Sarah went to the Prince William County Juvenile and Domestic Relations District Court (the “JDR court”) and requested a preliminary protective order in order to prevent Crawford from having any further contact with her. In the affidavit for preliminary protective order (hereinafter “the affidavit”), which Sarah signed, she recounted past incidents in which Crawford forcibly raped her, threatened her life, and physically and verbally abused her. In the affidavit, Sarah also stated
[o]n October 80, 2004, [Crawford] called me and told me that I must want to die. He also said he understands why husbands kill their wives. He told me that he would find me and would come to my work.... I am afraid of [Crawford]. I fear he may physically hurt me or even kill me. I want him to stay away from me and my family.
The JDR court granted Sarah’s request for a preliminary protective order.
As Sarah began to settle into her new life, she tried to take precautions for her own
On Thursday November 18, 2004, Sarah apparently sought to sever her last remaining ties with Crawford. On that day Sarah prepared a document that purported to release her father from any liability on the lease for the apartment that she previously shared with Crawford. Due to Crawford’s credit problems, Mr. Powers co-signed the lease for their apartment. Sarah now wanted her father’s name removed from the lease. Because her printer was broken, Sarah asked one of her supervisors to print out the release form on his printer that afternoon. A copy of that release was later recovered from her supervisor’s computer. Before Sarah left work on November 18, she informed her supervisor that she would be late the following morning, but she expected to be at the office by 1:00 p.m.
Sarah never made it to work on Friday, November 19, 2004. That morning, a hunter in Fauquier County found a box along the road that belonged to Sarah’s employer. Sarah’s supervisor testified that she was supposed to ship that box for him. The box had a small amount of Sarah’s blood on it. Later that day, the Powers received a telephone call from a person who found Sarah’s cell phone lying in the grass near his driveway in Manassas.
On the morning of Saturday, November 20, 2004, the Powers went back to Sarah’s apartment. Sarah’s car was still missing, and her cat was still at the door, crying. Mrs. Powers called Sarah’s salon to see if she had arrived at her hair appointment on Saturday morning and was told she had not. The Powers made the fifty-minute round trip from their home to Sarah’s apartment three more times on Saturday. Each time they returned, Sarah’s cat cried and clawed at the door. The last time the Powers went to Sarah’s apartment on Saturday evening was around 8:00 p.m. They found a bottle of wine at the door with a note that said, “Sarah, sorry I missed you. Call me to let me know you’re okay.” Sarah had missed her Saturday afternoon date.
On Sunday, November 21, 2004, the Powers were finally able to reach Sarah’s landlord, who let them into her apartment. The first thing the Powers noticed was that her cat had no food or water. The Powers had taken care of Sarah’s cat when she had gone out of town before, and it was uncharacteristic for Sarah to leave her pet unattended and without food or water. After taking care of the cat, the Powers began looking around Sarah’s apartment to try to determine what had happened. Mrs. Powers noted that all of Sarah’s luggage was still in the apartment and that the clothes she had worn to dinner on Thursday were on the floor in front of her washing machine. Mrs. Powers went to Sarah’s bedroom and noticed that there was a book open to page fifty-nine lying face down on Sarah’s bedside table entitled, It’s My Life Now: Starting Over After an Abusive Relationship or Domestic Violence.
In the early morning hours of November 22, 2004, the night manager of a motel in Charlottesville, Virginia found Sarah dead in one of the motel’s rooms, her body positioned in a particularly gruesome and suggestive manner. Stripped naked, Sarah was placed on the bed in a “frog-like position.” A motel
Given the abundance of evidence linking him to the murder scene, the Charlottesville police began to search for Crawford. As part of that investigation, the police contacted Crawford’s relatives. Crawford’s adult daughter, who lived in South Carolina, reported that her father had contacted her recently and asked her to wire him money. With this information, the police then learned that Crawford was staying with his extended family in Jacksonville, Florida.
The Charlottesville police informed their Jacksonville colleagues that they had reason to believe Crawford was in their area and that there was an outstanding warrant for his arrest for the murder of Sarah. The Charlottesville police also advised the Jacksonville authorities that Crawford was likely driving Sarah’s car, a maroon Hyundai. The Jacksonville police located Crawford and arrested him; they also seized Sarah’s car (which Crawford was driving at the time of his arrest) and sealed it for evidentiary purposes. The Charlottesville police later processed the car for evidence. The driver’s window of the vehicle was broken, and police found Sarah’s blood on both the driver’s and rear seats. The police found gunshot residue in the car and a box of ammunition in the trunk.
Crawford waived his Miranda rights and made a statement to the Florida police during a custodial interview. The interview was videotaped, and the recording was admitted into evidence at trial. Crawford claimed that Sarah had picked him up early Friday morning at his house. He said they had planned to go to Charlottesville for the weekend to attempt to reconcile. After an hour to an hour and a half drive, they arrived in Charlottesville at about 8:30 in the morning. Sarah was driving, and he was in the passenger’s seat. Crawford said they drove directly to a McDonalds and got breakfast.
Crawford then said that he pulled Sarah into the back seat and drove to a nearby hotel and rented a room. He left Sarah’s body on the bed and her clothing in the room and “took off and headed south.” Significantly, Crawford never offered any explanation
Prior to trial, Crawford made a motion to suppress the affidavit executed by Sarah in support of the protective order, arguing that the document was testimonial hearsay and, therefore, inadmissible under Crawford v. Washington,
On appeal, Crawford contends that the trial court erred in (1) denying his motion to suppress an affidavit made by Sarah Crawford, which was submitted to the JDR court in conjunction with her application for a preliminary protective order
On December 23, 2008, a divided panel of this Court reversed all of Crawford’s convictions with the exception of his conviction for grand larceny. See Crawford v. Commonwealth,
The Commonwealth petitioned the full Court for rehearing en banc, and on January 27, 2009, we granted the Commonwealth’s petition and stayed the mandate of the panel opinion.
ANALYSIS
I. The Confrontation Clause and the Admissibility of the Affidavit
In denying Crawford’s motion to suppress the statements contained in the affidavit, the trial court found that Crawford “ha[d] forfeited his Sixth Amendment right to confront [Sarah’s] testimony because he intentionally procured her unavailability to testify.” In reaching this conclusion, the trial court stated that, “[t]o apply the forfeiture by wrongdoing doctrine, this [c]ourt must find by a preponderance of the evidence ... that [Crawford] is responsible for [Sarah’s] unavailability as a witness and therefore forfeited
Crawford contends that the trial court misapplied the “forfeiture by wrongdoing doctrine” and, therefore, under the United States Supreme Court’s analysis in Crawford v. Washington,
“The Confrontation Clause of the Sixth Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” Davis v. Washington,
While this appeal was pending, the Supreme Court decided Giles v. California, — U.S. -, -,
Significantly, in that portion of Justice Scalia’s opinion in Giles supported by a clear majority of the justices, the Supreme Court left open the possibility that a defendant’s intention to prevent testimony might be inferred from the surrounding circumstances, such as in a case of ongoing domestic violence:
Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions.Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.
Id. at-,
Examining the early cases and commentary, however, reveals two things that count in favor of the Court’s understanding of forfeiture when the evidence shows domestic abuse. The first is the substantial indication that the Sixth Amendment was meant to require some degree of intent to thwart the judicial process before thinking it reasonable to hold the confrontation right forfeited; otherwise the right would in practical terms boil down to a measure of reliable hearsay, a view rejected in Crawford v. Washington,541 U.S. 36 ,124 S.Ct. 1354 ,158 L.Ed.2d 177 (2004). The second is the absence from the early material of any reason to doubt that the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.
Id. at-,
In the case at bar, the Commonwealth presented no direct evidence that Crawford acted with the intent to prevent Sarah from testifying against him, nor did the trial court find that the circumstantial evidence of domestic abuse was sufficient to support an inference that Crawford intended to prevent Sarah from seeking redress for, or protection from, such abuse through the courts. By not considering Crawford’s intent, the trial court incorrectly applied the forfeiture by wrongdoing doctrine, as it was defined in Giles. Thus, the trial court erred in its analysis for admitting the affidavit on that basis.
If this were the end of our analysis, we would remand this case back to the trial court for it to determine on retrial whether an intent on the part of Crawford “to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution” can be reasonably inferred from the facts and circumstances of the case.
In its ruling on Crawford’s motion to suppress, the trial court found that the statements contained in the affidavit “do fall within the scope of Crawford.” The trial court reached this conclusion because, in Crawford, the Supreme Court specifically included affidavits in its non-exhaustive list of the types of testimonial statements.
An appellate court cannot vacate a criminal conviction that violates no recognizable legal principle simply on the ground that the prosecutor (or, for that matter, the trial judge) did not articulate the proper legal basis for it. Thus, an appellee may argue for the first time on appeal any legal ground in support of a judgment so long as it does not require new factual determinations, [Harris v. Commonwealth,39 Va.App. 670 , 676,576 S.E.2d 228 , 231 (2003) (en banc)], or involve an affirmative defense that must be “asserted in the pleadings,” Eason v. Eason,204 Va. 347 , 352,131 S.E.2d 280 , 283 (1963), or serve as a subterfuge for a constitutionally prohibited cross-appeal in a criminal case, Hart v. Commonwealth,221 Va. 283 , 290,269 S.E.2d 806 , 811 (1980).
Blackman v. Commonwealth,
The Confrontation Clause only applies to testimonial hearsay. That is because only those statements that are “testimonial” in nature “cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis,
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 822,
The statements at issue in this appeal are contained within an “Affidavit for Preliminary Protective Order.” Although the Supreme Court of the United States recently stated that affidavits “fall within the ‘core class of testimonial statements’ ” subject to the Confrontation Clause, we find it significant that the Court did not go as far as to hold that all affidavits are per se testimonial. Melendez-Diaz v. Massachusetts, - U.S. -, -,
Justice Scalia’s majority opinion in Crawford makes it clear that the evil the Confrontation Clause was intended to prevent was the purposeful creation and use in a criminal case of an affidavit as a substitute for the live testimony of a witness, as he noted was the case in the famous trial of Sir Walter Raleigh, and as was also the case in Melendez-Diaz. After carefully reviewing the holdings of Crawford, Davis, and Melendez-Diaz, we see no principled reason to conclude that a hearsay statement obtained for a purpose other than criminal prosecution should be treated differently with respect to the Confrontation Clause solely because it takes the form of an affidavit. Thus, the mere fact that the statements at issue in this case are contained within an affidavit is not dispositive to our analysis, and we must still look to the “primary purpose of the interrogation” to determine whether the statements are of a testimonial or nontestimonial character. Davis,
It is undisputed that Sarah made the statements contained in the affidavit for the purpose of obtaining a preliminary protective order
The statute provides, in pertinent part, that:
Upon the filing of a petition alleging that the petitioner is or has been, within a reasonable period of time, subjected to family abuse, the court may issue a preliminary protective order against an allegedly abusing person in order to protect the health and safety of the petitioner.... The order may be issued in an ex parte proceeding upon good cause shown when the petition is supported by an affidavit or sworn testimony before the judge or intake officer.
Code § 16.1-253.1(A) (emphasis added). From the plain language of the statute and as Judge Elder’s dissent acknowledges, it is clear that the primary purpose of the affidavit is not to initiate or further a criminal prosecution, but rather “to protect the health and safety of the petitioner” from an abuser by obtaining an ex parte preliminary protective order, a proceeding that is purely civil in nature. Id.
Because the primary purpose of the affidavit was not to “prove past events potentially relevant to later criminal prosecution” but rather to obtain a civil, preliminary protective
II. Abduction with Intent to Defile and Rape
Crawford further contends that the evidence adduced at trial was insufficient to sustain his convictions for abduction with intent to defile and rape. Specifically, Crawford asserts that, without the affidavit, the Commonwealth failed to exclude every reasonable hypothesis of his innocence. We disagree.
“[W]hen assessing the sufficiency of the evidence on appeal, “we consider all admitted evidence, including illegally admitted evidence.’ ” Sprouse v. Commonwealth,
[A]n appellant’s concession of law [ ] qualifies either as a waiver for purposes of Rule 5A:18 or as an express withdrawal of an appellate challenge to a trial court judgment. In either scenario, we may accept the concession-not as a basis for deciding the contested issue of law, but as a basis for not deciding it.
Logan,
CONCLUSION
For the foregoing reasons, we hold that the trial court incorrectly applied the forfeiture by wrongdoing doctrine because it did not consider whether Crawford acted with the intent to prevent Sarah from either testifying as a witness or seeking aid from the judicial process. However, because we hold that the statements contained in the affidavit were not testimonial under Davis, and thus, did not implicate Crawford’s Sixth Amendment right to confrontation, the trial court’s ultimate admission of the affidavit was not error. Finally, given counsel for Crawford’s concession that, with the affidavit, the evidence is sufficient to sustain his convictions for abduction with intent to defile and rape, we hold that Crawford has waived his argument with respect to this issue. Therefore, we affirm all of Crawford’s convictions.
Affirmed.
Notes
. On appeal, we view the facts established at trial in the "light most favorable” to the prevailing party below, in this case the Commonwealth, Commonwealth v. Hudson,
. Before they separated, Sarah shared the apartment with Crawford.
. The protective order prohibited Crawford from having any contact with his wife. At a court hearing on November 16, 2004, Sarah appeared in the JDR court and asked that the protective order be dismissed. The record does not establish why she made this request.
. Records from Sarah's cell phone revealed that Sarah called Crawford twice on November 19, 2004, once at 7:52 a.m. and again at 8:51 a.m.
. Although characterized by the Powers and other witnesses as "Sarah’s car,” the evidence adduced at trial established that the vehicle Crawford was driving actually belonged to Mr. Powers.
. The autopsy report, which was admitted into evidence, described the contents of Sarah’s stomach as "a scant amount (20 cc) of thin yellow fluid.”
. The police learned that on November 6, 2004, Crawford purchased a .38 Smith & Wesson revolver. He later purchased a box of .38 caliber ammunition on November 13, 2004. Although Crawford disposed of his revolver, police found a box of ammunition in his possession after Sarah was shot and killed. Two cartridges were missing from the box.
. Appellant's brief states "[d]uring the course of their travel [from Manassas to Charlottesville] they engaged in consensual intercourse.” The record is totally devoid of any evidence to support this assertion.
. Because this issue before us involves only a constitutional question, we do not address the applicability of the rules of evidence with respect to the admissibility of the affidavit, either as a whole, or in redacted form.
. Crawford’s brief contains a third question presented: "Did the trial court err in admitting non-testimonial statements of the decedent made to several friends and co-workers?” However, the Commonwealth’s petition for rehearing en banc, which we granted in full, did not include this question presented. As counsel for Crawford conceded at oral argument, this issue is not before this Court upon rehearing en banc. See Ferguson v. Commonwealth,
. Giles was a plurality opinion of the Supreme Court. Therefore, " 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....' ” Marks v. United States,
. In Giles, the Supreme Court vacated the appellant's conviction and remanded the case "for further proceedings not inconsistent with [the] opinion.” - U.S. at-,
Judge Elder’s dissent takes the position that such a remand is unnecessary given the prosecutor's "concession” that the Commonwealth lacked evidence that Crawford killed Sarah for the sole purpose of preventing her from testifying against him. However, his position ignores the fact that the holding of Giles is that the forfeiture doctrine is broader than simply killing a witness to prevent that witness from testifying in a pending case. As noted above, Giles holds that the forfeiture doctrine also applies in domestic violence situations where there is evidence of "the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution." Id. at --,
Judge Elder’s dissent also takes the position that the Commonwealth has "approbated and reprobated" by taking inconsistent positions at trial and on appeal. The context for our disagreement with Judge Elder on this point is the query from the trial court to the prosecutor that "the evidence is not likely to show that there was some proof of intent ..." and "that it’s a two-prong and not a three-prong test. Is that right?” The prosecutor’s response is "That’s correct, Your Hon- or....” Judge Elder views the answer from the prosecutor as a concession by the Commonwealth that it lacks proof of Crawford’s intent. However, it is equally as likely that the prosecutor simply agreed with the trial court as to the number of prongs in the test. In any event, even if the prosecutor’s agreement with the trial court’s statement is viewed as a concession that the Commonwealth cannot meet an evidentiary standard, it is not inconsistent and/or contradictory for the Commonwealth to say in effect "We may not have evidence of intent, but we don’t need it because it's not required.”
Furthermore, the uniquely independent constitutional roles of the Attorney General and the Commonwealth’s Attorney must be distinguished from each other. As our Supreme Court has noted, because of this distinction, unlike other parties in a case on appeal, the Attorney General may expressly ”repud[iate] the earlier position erroneously taken by the Commonwealth's Attorney____” In re Department of Corrections,
. The record of the suppression hearing reflects that, following the argument of counsel for Crawford that the affidavit was testimonial and before hearing any argument in response from the Commonwealth, the trial court observed sua sponte that the affidavit was testimonial but arguably admissible under the forfeiture by wrongdoing doctrine. The arguments of counsel then focused on whether that rationale applied. The letter opinion of the trial court states that the Commonwealth "does not dispute” that the affidavit was testimonial.
. It is important to note that the decision before us on appeal is the trial court’s decision to deny Crawford’s motion to suppress and to admit the affidavit as evidence. Because the trial court ruled in the Commonwealth’s favor and admitted the affidavit, the Commonwealth had nothing to appeal. Thus, contrary to the position of Judge Elder’s dissent, this is not a situation where the Commonwealth is pursuing a constitutionally prohibited cross-appeal but rather, is simply a case of the prevailing party below raising an alternate basis for affirming the trial court, which we must consider if it is supported by the record in this case. Furthermore, our consideration of whether the statements contained in the affidavit were of a testimonial character was squarely before the trial court and our resolution of this issue requires no additional fact-finding. See Harris,
. Both dissents take the position that because an affidavit for a protective order might be used in a criminal proceeding, all such affidavits are testimonial for Sixth Amendment purposes. Given that the gravamen of any contempt proceeding or misdemeanor prosecution for violation of a protective order is the violation of the order itself, it is difficult to conceive of any relevance to the use by the Commonwealth of the underlying affidavit but in any event, the dissents’ speculation about possible future use in a criminal case is true of any out-of-court statement. Thus, the position of the dissents necessarily emasculates any primary purpose analysis under Davis.
. Affidavits may be, and often are, created for purposes unrelated to a criminal prosecution. For example, an affidavit of loss may be required by an insurance company as a prerequisite to process an insurance claim or required by a bank in order to replace a lost or stolen credit card, or may be required by law to obtain injunctive relief. See e.g. Code § 8.01-628; Code § 48-17.1.
. During oral argument, counsel for Crawford conceded that the primary purpose of the affidavit was not in furtherance of potential criminal prosecution but for the purpose of obtaining a protective order.
. In other constitutional contexts, the Supreme Court of the United States has noted that while the provisions of the Fifth and Sixth Amendments apply only to "criminal” matters, the labels "civil” and "criminal” are not dispositive. "The critical features are the substance of the proceeding and the character of the relief that the proceeding will afford.” Hicks v. Feiock,
As provided by Code § 16.1-253.1, the procedure for obtaining a protective order is an ex parte rather than an adversary proceeding and involves the restriction of conduct for the express and sole purpose of protection. Moreover, any sanction or punishment relates solely to the disobedience of the court order and not to any past conduct that might be reflected in the affidavit. In short, and contrary to the position of Judge Beales' dissent, the procedures used and the relief provided by the statute are in the nature of those used to obtain injunctive relief and thus are clearly civil in nature and not a criminal prosecution subject to the application of the Sixth Amendment. Other jurisdictions share this view of protective orders. See Katsenelenbogen v. Katsenelenbogen,
. Because we affirm Crawford’s convictions for abduction with intent to defile and rape, we also affirm his convictions for capital murder, use of a firearm in the commission of a murder, and use of a firearm in the commission of an abduction.
Concurrence Opinion
joins, concurring, in part, and dissenting, in part.
I concur with the en banc majority’s statement that, under the doctrine of forfeiture by wrongdoing, evidence which is testimonial may “ ‘not be admitted without a showing that the defendant intended to prevent a witness from testifying.’” See supra at 472-73,
Further relying upon Giles, the majority concludes that,
[i]f this were the end of our analysis, we would remand this case ... to the trial court for it to determine on retrial whether an intent on the part of [appellant] ‘to isolate the victim and to stop her fromreporting abuse to the authorities or cooperating with a criminal prosecution’ can be reasonably inferred from the facts and circumstances of the case.
See id. (quoting Giles, — U.S. at-,
The majority also concludes that the forfeiture-by-wrongdoing doctrine did not prevent admission of the affidavit because the affidavit was not testimonial under Crawford v. Washington,
Thus, I respectfully dissent from the majority’s affirmance of all of appellant’s convictions except grand larceny.
I.
A.
APPELLANT’S INTENT
Relying upon Giles, the majority concludes that if the affidavit were testimonial, the appropriate course of action would be to remand “to the trial court for it to determine on retrial whether an intent on the part of [appellant] ‘to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution’ can be reasonably inferred from the facts and circumstances of the case.” See supra at 474,
In Giles, trial occurred before the United States Supreme Court’s decision in Crawford v. Washington. See People v. Giles,
In appellant’s case, by contrast, appellant filed a pretrial motion in limine to exclude the affidavit, and the Commonwealth filed a written response in which it expressly argued the trial court should apply the forfeiture-by-wrongdoing exception to the hearsay rule to admit Mrs. Crawford’s statements in the affidavit. The Commonwealth argued this exception did not require the trial court to find appellant had killed Mrs. Crawford to prevent her from testifying and instead required only a preliminary finding that appellant did kill her. Although the Commonwealth indicated during the motion hearing that it had “been talking with witnesses for months” and that “the last couple of weeks have been pretty in-depth,” it did not aver in the alternative, either in its written response
The trial court articulated the dispute as being over whether the forfeiture-by-wrongdoing exception required proof of three elements—including proof that the defendant committed the charged crime with the intent to prevent the victim from testifying—or only two, not including this specific intent element. It then engaged in the following exchange with the Commonwealth:
THE COURT: ... First of all, do you agree that we’d have to have an evidentiary hearing? In other words, that at this stage of the proceedings ... roughly two weeks before trial, that as a practical matter the way this matter will go forward assuming that the Court finds that ... there’s been sufficient evidence to show a wrongful taking of the life of the victim here. That would take place during the Commonwealth’s case-in-chief and then there will be a point where the Commonwealth would rest and ... the Court would have to rule on whether the motion in limine would be granted or not.
[THE COMMONWEALTH]: Yes, Your Honor....
THE COURT: All right, and I take it, based on the proffer of evidence ... from preliminary hearing and from the briefs, ... that the evidence is not likely to show that there was some proof of intent to keep the victim from testifying, per se. That ... the Commonwealth’s theory is that it was ... a wrongful killing and that the Commonwealth believes it will be able to show by a preponderance, and that’s all the Commonwealth needs to have[,] ... that it’s a two-prong and not a three-prong test. Is that right?
[THE COMMONWEALTH]: That’s correct, Your Honor____
Thus, the Commonwealth conceded it could not meet such an evidentiary standard if the court were to hold such a standard applied.
“A party may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.” Cangiano v. LSH Bldg. Co.,
Because the Commonwealth conceded at trial that it could not establish appellant killed Mrs. Crawford to prevent her from testifying, it may not take a contrary position on remand. To the extent the Supreme Court’s holding in In re Department of Corrections,
In any event, because the majority concludes the affidavit was not testimonial and, thus, that it was properly admitted regardless of whether appellant killed Mrs. Crawford with the intention of preventing her from testifying against him, the majority’s rationale regarding how the Commonwealth might go about proving a defendant in a domestic violence case intended to prevent a witness from testifying in order to invoke the forfeiture-by-wrongdoing doctrine is dictum.
B.
TESTIMONIAL NATURE OF THE AFFIDAVIT
1. Whether the affidavit contains testimonial hearsay is not before us in this appeal.
The trial court held the affidavit was testimonial but that its admission did not violate the Confrontation Clause because the forfeiture-by-wrongdoing doctrine applied. The Commonwealth had no right to appeal the ruling that the affidavit was testimonial, and it would have had no right to appeal even if the trial court had excluded the affidavit on the grounds appellant alleged. Code § 19.2-398, which governs the Commonwealth’s right of appeal, provides in relevant part as follows:
A. In a felony case a pretrial appeal from a circuit court may be taken by the Commonwealth from:
1. An order of a circuit court dismissing a warrant, information or indictment, or any count or charge thereof on the ground that (i) the defendant was deprived of a speedy trial in violation of the provisions of the Sixth Amendment to the Constitution of the United States, Article I, Section 8 of the Constitution of Virginia, or § 19.2-243; or (ii) the defendant would be twice placed in jeopardy in violation of the provisions of the Fifth Amendment to the Constitution of the United States or Article I, Sectiob 8 of the Constitution of Virginia; or
2. An order of a circuit court prohibiting the use of certain evidence at trial on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia prohibiting illegal searches and seizures and protecting rights against self-incrimination, provided the Commonwealth certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding.
B. A petition for appeal may be taken by the Commonwealth in a felony case from any order of release on conditions pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title.
C. A petition for appeal may be taken by the Commonwealth in a felony case after conviction where the sentence imposed by the circuit court is contrary tomandatory sentencing or restitution terms required by statute.
D. Nothing in this chapter shall affect the Commonwealth’s right to appeal in civil matters or cases involving a violation of law relating to the state revenue or appeals pursuant to § 17.1-411 or subsection C of § 19.2-317.
E. A pretrial appeal may be taken in any criminal case from an order of a circuit court dismissing a warrant, information, summons, delinquency petition, or indictment, or any count or charge thereof, on the ground that a statute or local ordinance on which the order is based is unconstitutional.
Manifestly, subsections (A)(1), (B), (C), (D) and (E) would not apply to permit an appeal of a ruling that admission of the affidavit the victim completed to accompany her earlier protective order request violated appellant’s Confrontation Clause rights. Further, subsection (A)(2) applies only to evidence alleged to have been “obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia prohibiting illegal searches and seizures and protecting rights against self-incrimination.” Code § 19.2-398(A)(2) (emphases added); see Commonwealth v. Hawkins,
Thus, the Commonwealth lacked the right to ask this Court to revisit that issue in appellant’s appeal because to do so would “serve as a subterfuge for a constitutionally prohibited cross-appeal.” See White v. Commonwealth,
2. Even if we properly may consider the nature of the affidavit, its contents are testimonial.
Even if we were not bound by the trial court’s ruling regarding the nature of the affidavit’s contents, the Supreme Court’s pronouncements in this area compel the conclusion that the statements in the affidavit are, in fact, testimonial hearsay. The majority’s reliance on the “primary purpose” language in Davis v. Washington,
In Crawford, the Court noted the existence of “[v]arious formulations of th[e] core class of ‘testimonial’ statements”:
“ex parte in-court testimony or its functional equivalent— that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” Brief for Petitioner 23; “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois,502 U.S. 346 , 365[,112 S.Ct. 736 , 747,116 L.Ed.2d 848 , 865] (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3.
Crawford,
In Davis, the Court distinguished between types of statements made to law enforcement officers. It held that answers to questions posed by law enforcement officers for the purpose of addressing an ongoing emergency during a 911 call were non-testimonial, whereas answers to questions given “when the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” are testimonial.
[m]ost of the American cases applying the Confrontation Clause or its state constitutional or common-law counterparts involved testimonial statements of the most formal sort—sworn testimony in prior judicial proceedings or formal depositions under oath—which invites the argument that the scope of the Clause is limited to that very formal category[,][b]ut [that] the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions.
Davis,
The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements. When we said in Crawford, [541 U.S.] at 53[,124 S.Ct. at 1365 ,158 L.Ed.2d at 194 ], that “interrogations by law enforcement officers fall squarely within [the] class” of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford, ‘“[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ”541 U.S. at 51 [,124 S.Ct. at 1364 ,158 L.Ed.2d at 192 ].
Id. at 826,
Davis in no' way purported to narrow the definition of “testimonial” provided in Crawford and specifically stated it did not reach the issue of “whether and when statements made to someone other than law enforcement personnel are ‘testimonial.’ ” Id. at 823 n. 2,
Most recently, in Melendez-Diaz, the Court considered the character, for Confrontation Clause purposes, of “statements” not made in response to any sort of direct police questioning— those contained in a certificate “reporting the results of forensic analysis
In Melendez-Diaz, however, the Court quoted all three tests as “describing] the class of testimonial statements covered by the Confrontation Clause” and held “[t]here is little doubt that the documents at issue [here] fall within the ‘core class of testimonial statements’ thus described” because “the description of that category mentions affidavits twice.” — U.S. at -,
quite plainly affidavits: “declaration^ of facts written down and sworn to by the declarant before an officer authorized to administer oaths[,]” Black’s Law Dictionary 62 (8th ed. 2004)[,] ... “ ‘made for the purpose of establishing or proving some fact[,]’ ” Crawford, [541 U.S.] at 51[,124 S.Ct. at 1364 ,158 L.Ed.2d at 192 ] (quoting 2 N. Webster, An American Dictionary of the English Language (1828)).
Id.
The Court made the following additional observations but did not hold that such proof was required to establish the certificates of analysis were testimonial:
Here, moreover, not only were the affidavits “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ ” Crawford, [541 U.S.] at 52, [124 S.Ct. at 1364 ,158 L.Ed.2d at 193 ], but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance.
In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment.
Id. at-,
In sum, when the document at issue is an “ ‘extrajudicial statement ] ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions,’ ” a majority of the Court has not required proof that the “declarant[] would reasonably expect [the statement] to be used prosecutorially” or would reasonably expect “the statement would be available for use at a later trial.” Id. at -,
Even under a narrower definition, Mrs. Crawford was “[a]n accuser who [made] a formal statement [about appellant] to [a] government officer[]” and, thus, “[bore] testimony” against him. See Crawford,
Contrary to the majority’s claim, a proceeding for a protective order is not wholly or even primarily civil. As the majority recognizes, although the Confrontation Clause “applies] only to ‘criminal’ matters,” the United States Supreme Court has held in other contexts that “the labels ‘civil’ and ‘criminal’ are not dispositive.” See supra at 480 n. 18,
“The distinction between refusing to do an act commanded,—remedied by imprisonment until the party performs the required act; and doing an act forbidden,—punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment.” Gompers [v. Buck’s Stove & Range Co.], 221 U.S. [418,] 443[,31 S.Ct. 492 , 499,55 L.Ed. 797 , 807 (1911)].
Hicks,
Finally, even assuming characterization of the proceeding as civil is proper, the affidavit alleged appellant committed numerous serious criminal offenses against Mrs. Crawford, including “forcibly rap[ing] her, threatening] her life, and physically and verbally abus[ing] her.” See supra at 464,
C.
HARMLESS ERROR
Because I would conclude the trial court committed constitutional error by admitting Mrs. Crawford’s affidavit to prove the truth of its contents, I would also consider whether the introduction of this evidence affected the jury’s decision, i.e., if this error was harmless.
II.
In sum, I concur in the en banc majority opinion only to the extent it holds the trial court incorrectly applied the forfeiture-by-wrongdoing doctrine because it did not require a showing that appellant intended to prevent the victim from testifying against him. Based on the principle that a party may not approbate and reprobate, I would hold the Commonwealth is bound by its concessions at trial that appellant did not kill the victim to prevent her from testifying and may not seek to prove otherwise on remand. I would also hold that controlling precedent of the United States Supreme Court compels the conclusion, as the trial court held, that the affidavit was testimonial. Thus, I would hold the trial court’s admission of the affidavit violated the Confrontation Clause. Finally, I would conclude that this erroneous admission was not harmless except as to appellant’s grand larceny conviction, thereby requiring reversal of his other convictions and remand for retrial in a proceeding in which the affidavit is not admitted. Thus, I respectfully dissent.
. Appellant also challenges the sufficiency of the evidence to support his convictions for rape and abduction with intent to defile. If an appellate court concludes the evidence including any improperly admitted evidence is insufficient to support a defendant’s convictions, remand for retrial on those charges violates double jeopardy principles. See Hargraves v. Commonwealth,
Despite this analysis at the panel stage, counsel for appellant took the position in oral argument on rehearing en banc that the evidence including the affidavit is, in fact, sufficient to prove rape and abduction with intent to defile. Because appellant conceded the legal sufficiency of the evidence on this point, I conclude remand is appropriate without reaching the issue regarding whether double jeopardy principles would require dismissal of these indictments. See Logan v. Commonwealth,
Concurrence Opinion
joins, concurring, in part, and dissenting, in part.
The facts presented in this appeal are tragic and disturbing, as the majority opinion aptly describes. However, disturbing as they are, we, nevertheless, as judges on this Court, are required, of course, to follow the binding precedent of the United States Supreme Court and the Supreme Court of Virginia, and, therefore, we must determine whether this case, despite the fact of a tragic killing, also presents legal error of a constitutional nature. After reviewing the relevant law, I find that I must reach a different conclusion than the majority opinion on several issues in the analysis of this case, although I also would ultimately conclude that most of appellant’s convictions should be affirmed.
I. The Affidavit
The majority opinion finds that the trial prosecutor “neither conceded nor disputed” the trial court’s, and appellant’s, position that Mrs. Crawford’s affidavit was testimonial hearsay and that, even if the prosecutor did concede that the affidavit was testimonial, he was wrong. I must disagree with both of these positions.
A. The Commonwealth’s Concession and Right Result/Wrong Reason
The majority opinion states, “[T]he Commonwealth neither conceded nor disputed the
Appellant filed a written motion in limine, asking the trial court to exclude the 2004 affidavit that Mrs. Crawford filed with the JDR court as part of a preliminary protective order petition. He argued that the document was testimonial and that its introduction into evidence would violate the Confrontation Clause. The motion also asked that the trial court exclude other “non-testimonial” statements that the Commonwealth intended to introduce at trial. The Commonwealth filed a written response to this motion, which labeled the affidavits “testimonial.” In its response to appellant’s arguments about the affidavit, the Commonwealth argued only that the affidavit was admissible under the “Forfeiture by Wrongdoing” doctrine, which the Supreme Court mentioned in Crawford v. Washington,
At the beginning of the hearing on appellant’s motion in limine, the trial court acknowledged receipt of briefs by the parties and stated, “I have read the briefs.” Thus, the trial court clearly knew before the oral argument had even begun that the Commonwealth had consistently described the affidavit as “testimonial.” During his argument, appellant’s counsel said that he did not “see in the Commonwealth’s response that there’s any disagreement that those statements are, in fact, testimonial.” Appellant’s counsel then proceeded to explain why the two-pronged forfeiture by wrongdoing doctrine advocated by the Commonwealth was not applicable here. When the prosecutor interrupted to ask if only the affidavit was under discussion at that moment, the court answered, “I think we’re all agreeing that the testimonial part of it is what he’s arguing at the moment.”
When the prosecutor began his argument, the prosecutor agreed that the evidence would not show “some proof of intent to keep the victim from testifying, per se,” asking the court to apply a “two-pronged,” rather than the traditional “three-pronged” forfeiture by wrongdoing doctrine. At the conclusion of the argument, appellant and the trial court discussed whether the state-of-mind exception to the general prohibition on the introduction of hearsay might allow the presentation of the affidavit to the jury for some limited purposes.
Eight days later, the trial court issued a letter opinion that, inter alia, denied appellant’s motion in limine to exclude the 2004 affidavit. In this letter, the court noted, “there is much confusion in the courts over the scope of the testimonial category of hearsay,” but Crawford v. Washington lists affidavits as an example of a type of testimonial statement. The court concluded, “[I]t is clear, and the Commonwealth does not dispute, that these statements do fall within the scope of Crawford.” The trial court then used the two-pronged forfeiture by wrongdoing doctrine advocated by the Commonwealth to rule that the affidavit was admissible for the truth of the matters asserted therein.
Given these proceedings, I believe that we must conclude that the Commonwealth conceded to appellant’s, and the trial court’s, characterization of the affidavit as testimonial hearsay. The prosecutor never argued that the affidavit was non-testimonial. Instead, he opted to argue that an exception to the Confrontation Clause applied, an exception that was relevant only if the affidavit
Given this posture and the fact finding that the trial court did and did not make in reaching this conclusion, I must respectfully disagree with the majority opinion’s application of the “right result/wrong reason” doctrine to this case. I would find that this doctrine does not apply here.
The Supreme Court of Virginia recently noted with approval the following explanation of this doctrine:
An appellate court may affirm the judgment of a trial court when it has reached the right result for the wrong reason. However,
[t]he rule does not always apply---- [T]he proper application of this rule does not include those cases where, because the trial court has rejected the right reason or confined its decision to a specific ground, further factual resolution is needed before the right reason may be assigned to support the trial court’s decision.
Harris v. Commonwealth,39 Va.App. 670 , 675-676,576 S.E.2d 228 , 231 (2003), Blackman v. Commonwealth, 45 Va.App. 633, 642-643,613 S.E.2d 460 , 465 (2005) (“an appellee may argue for the first time on appeal any legal ground in support of a judgment so long as it does not require new factual determinations.”) We agree with these holdings by the Court of Appeals.
Whitehead,
The trial court rejected the grounds now advocated by the Commonwealth on appeal. As the majority points out, the trial court explicitly found that the affidavit was testimonial hearsay. In doing so, the trial court implicitly rejected any factual findings upon which to base an argument that the affidavit was non-testimonial hearsay. The trial court was never asked to make any explicit findings of fact or consider the evidence regarding the creation or “primary purpose” of the affidavit, as the Commonwealth did not object to the characterization of the affidavit as testimonial hearsay. No evidence was specifically presented to address this issue. In addition, the evidence that was before the trial court, such as the fact that the affidavit was given under oath, supported the trial court’s finding that the affidavit was testimonial hearsay especially in light of the fact that the Commonwealth did not object to that finding. Thus, the right result/wrong reason analysis cannot be applied here, as the trial court rejected the argument that the evidence is non-testimonial hearsay and implicitly rejected factual findings that are necessary to conclude that the affidavit was non-testimonial hearsay.
I believe that the primary purpose of the affidavit can only be discovered by examining the factual situation surrounding the creation of the affidavit. Here, the trial court found that the document at issue was an affidavit, but the trial court did not consider (and was not asked to consider) any evidence or circumstances regarding the creation of the affidavit. “[C]ases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not ‘proper cases’ for the application” of the “right result/wrong reason” doctrine. Whitehead,
In a footnote, the majority claims that appellant conceded during oral argument that the primary purpose for the affidavit was obtaining a protective order. I have two concerns with this basis for the majority opinion’s assumption that no new facts or evidence need be considered in applying the “right result/wrong reason” doctrine. First, the Commonwealth conceded the opposite position at trial when it effectively agreed with appellant that the affidavit was testimonial hearsay. Second, at oral argument, when asked by the Court sitting en banc whether appellant was “willing to concede” that the primary purpose for the affidavit was not a criminal prosecution, appellant’s counsel responded, “That’s not necessarily the case. We don’t know whether or not there may have been further, if the affidavit was to have been used in a further .... ” At this point, appellant’s counsel was asked another question by the Court, one suggesting that the burden of proof regarding the primary purpose fell on appellant as the person who appealed this case. Appellant’s counsel then essentially conceded that the evidence, such as it existed in the record, established only that the affidavit was created in order to obtain the protective order. However, appellant was not asked to concede, and did not concede, that no new factual findings or additional evidence from outside the record were necessary to consider whether the trial court had reached the right result, but for the wrong reason. Cf. Whitehead,
Because the trial court rejected the position now presented by the Commonwealth—that the affidavit was not testimonial—and because the trial court was not asked to make and did not explicitly make any factual findings that would support the Commonwealth’s new position on appeal, I would find that this appeal does not present an appropriate situation in which to apply the “right result/wrong reason” doctrine. This Court,
B. Testimonial Hearsay
While I do not believe it is appropriate for this Court to address the Commonwealth’s argument presented in this appeal, now claiming that the affidavit was actually non-testimonial hearsay, for the reasons stated supra, I find that I must address this issue because I believe that the majority opinion incorrectly concludes that the affidavit here is not testimonial hearsay. Based on the law as established by the United States Supreme Court, I must agree with the trial court, with appellant, and with the trial prosecutor that this affidavit is testimonial hearsay.
1. The Definition of Testimonial Hearsay
The United States Supreme Court explained in Crawford v. Washington:
The text of the Confrontation Clause reflects this focus. It applies to “witnesses” against the accused—in other words, those who “bear testimony.” 2 N. Webster, An American Dictionary of the English Language (1828). “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.
Two years later, the Supreme Court refined the definition of testimonial hearsay in Davis v. Washington,
The statement involved in Dávis’s case was a recording of a 911 call. Michelle McCottry informed the 911 operator that Davis was assaulting her, and the operator began asking McCottry questions. Id. at 817-18,
Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 822,
The Court also explained in a footnote that “the absence of any interrogation” will not automatically define a statement as non-testimonial. Id. at 822 n. 1,
In considering the particular facts of Davis’s case, the Court noted as important the fact that McCottry faced “an ongoing emergency” and that the operator’s questions were necessary to resolve that emergency. Id. at 827,
simply was not acting as a witness; she was not testifying. What she said was not “a weaker substitute for live testimony” at trial, United States v. Inadi,475 U.S. 387 , 394,106 S.Ct. 1121 , [1126,]89 L.Ed.2d 390 (1986), like Lord Cob-ham’s statements in Raleigh’s Case, 2 How. St. Tr. 1 (1603), or Jane Dingler’s ex parte statements against her husband in King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791), or Sylvia Crawford’s statement in Crawford [v. Washington]. In each of those cases, the ex parte actors and the evidentiary products of the ex parte communication aligned perfectly with their courtroom analogues. McCottry’s emergency statement does not. No “witness” goes into court to proclaim an emergency and seek help.
Id. at 828,
The Supreme Court found Amy Hammon’s statement presented “a much easier task,” given the ruling in Crawford v. Washington. Id. at 829,
What we called the “striking resemblance” of the Crawford statement to civil-law ex parte examinations,541 U.S., at 52 ,124 S.Ct. 1354 , [1364,]158 L.Ed.2d 177 , is shared by Amy’s statement here. Both declarants were actively separated from the defendant—officers forcibly prevented Hershel [Hammon] from participating in the interrogation. Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.
Id. at 830,
The statements in Davis were taken when McCottry was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. McCottry’s present-tense statements showed immediacy; Amy’s narrative of past events was delivered at some remove in time from the danger she described.
Id. at 831-32,
2. Mrs. Crawford’s Affidavit
The affidavit here is certainly more similar to the affidavit in Hammon’s case than to the statements to the 911 operator in Davis’s case. Both Mrs. Crawford’s and Amy Hammon’s statements were made after the emergency had passed, unlike McCottry’s statement. Both Mrs. Crawford’s and Amy Hammon’s statements were in the form of an affidavit made without the presence of the accused, whereas McCottry’s statement was made while defendant was actually present. Both Mrs. Crawford’s and Amy Hammon’s statements described past criminal behavior, while McCottry’s statement described events as they were occurring. In addition, the affidavit here was specifically prepared for presentation in a courtroom, as was the affidavit in Melendez-Diaz v. Massachusetts, -U.S.-,
Mrs. Crawford apparently gave her affidavit, at minimum, to obtain a preliminary protective order, under Code § 16.1— 253.1. The preliminary protective order that was issued indicates that, as part of an ex parte proceeding, the affidavit was presented to the court. The affidavit itself is typed on a sheet of paper with “31st Judicial District” and “Juvenile and Domestic Relations Court” printed at the top. The record does not indicate who typed the order or if the intake officer who notarized the affidavit asked questions of Mrs. Crawford to elicit the information. However, the affidavit is very organized and clearly is not a stream-of-consciousness statement like McCottry’s statement in Davis.
In the affidavit, Mrs. Crawford made a formal statement to prove that past criminal acts had occurred—exactly the type of statement that Crawford v. Washington and Davis prohibit as admission of testimonial hearsay.
The affidavit was explicitly prepared for presentation to a judge as part of an ex parte proceeding to obtain a protective order. It was an explicit substitute for testimony, the exact type of evidence excluded by the Confrontation Clause. Pursuant to Code § 16.1-253.1, Mrs. Crawford’s affidavit in support of a protective order petition needed to establish that she had been subjected to “family abuse,” which includes “any act involving violence, force, or threat including, but not limited to, any forceful detention, which results in bodily injury or places one in reasonable apprehension of bodily injury.” Code § 16.1-228. Once a preliminary protective order here was granted, appellant faced conviction, at minimum, of a Class 1 misdemeanor for having any contact with his wife. See Code § 16.1-253.2 (listing the penalties for violation of a protective order, ranging from a Class 1 misdemeanor to a Class 6 felony). To say that such a proceeding is “entirely civil in nature” and effect, as the majority opinion does, is simply not accurate. While all the due process protections of a criminal proceeding do not apply to petitions for a protective order, obtaining a protective order requires that the petitioner establish “family abuse” and, once granted, a protective order allows an individual to use the criminal law to enforce and prosecute a violation of that order. Code § 16.1-253.2 (establishing criminal penalties for protective order violations). Therefore, for all of the reasons stated supra, I cannot conclude, as the majority opinion does, that the affidavit here— submitted to a JDR court as part of a petition for the issuance of a protective order—was not created in expectation of future use in court and was not “potentially relevant” to possible future criminal proceedings. See Davis,
I would find that the prosecutor conceded that the affidavit was testimonial, which would include conceding any factual basis for finding that the affidavit was testimonial. Therefore, I believe this Court should not second-guess the trial court’s finding that the affidavit was testimonial. And, even if, as the majority contends, this Court can address the question of whether the affidavit is testimonial, I would continue to disagree with the majority and would find that the affidavit must be testimonial, given the United States Supreme Court’s analysis and holdings in Crawford v. Washington and in Davis.
Thus, I would find that it was constitutional error for the trial court to admit the affidavit into evidence for the truth of the matter stated therein. The two-pronged forfeiture by wrongdoing doctrine, which the Commonwealth advocated at trial and initially on appeal, is not an exception that would allow admission of the affidavit in this particular case—although the trial court did not have the benefit of reading the United States Supreme Court’s decision in Giles prior to its ruling because this decision was not handed down until after appellant’s trial had concluded. See Giles, — U.S. at-,
II. Harmless Error
Although I would find the trial court erred in admitting the affidavit for the truth of the
The Supreme Court, in Chapman v. California,386 U.S. 18 , 24,87 S.Ct. 824 , [828,]17 L.Ed.2d 705 (1967), held that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” As the Supreme Court stated in Delaware v. Van Arsdall,475 U.S. 673 , 681,106 S.Ct. 1431 , [1436,]89 L.Ed.2d 674 (1986), “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” See Neder v. United States,527 U.S. 1 , [15, 16,]119 S.Ct. 1827 , 1837,144 L.Ed.2d 35 (1999).
A court, when determining whether federal constitutional error is harmless, must consider several factors, including the importance of the tainted evidence in the prosecution’s case, whether the evidence was cumulative, the presence or absence of evidence corroborating or contradicting the tainted evidence on material points, and, of course, the overall strength of the prosecution’s case.
Dearing v. Commonwealth,
Appellant admitted that he shot Mrs. Crawford, but he claimed it was an accident. He told the police that he was attempting to kill himself while they were in Mrs. Crawford’s car. Mrs. Crawford supposedly reached for the gun, and it went off accidentally. The blood patterns in the car suggest that Mrs. Crawford was sitting in the driver’s seat and that someone sitting in the passenger’s seat shot her. Appellant also admitted that he then took his wife to the motel and left her there.
The affidavit was admitted to prove that appellant was violent towards Mrs. Crawford, rebutting his claim that he shot her accidentally. The affidavit described one incident in which appellant threw her against a door and also threw a glass at her. The affidavit described another incident during which appellant hit his wife three times with a belt and then forced her to have sexual intercourse with him. The affidavit also mentioned an incident that occurred while Mrs. Crawford and her parents attempted to take her things out of the marital home, when appellant threw a table.
This affidavit was admitted without limitation. Therefore, the document was improperly admitted for the truth of the matters asserted within the affidavit, but it nevertheless was properly admitted for other purposes, such as evidence of the victim’s state of mind. See Hodges v. Commonwealth,
I would find that the affidavit was properly admissible under the state-of-mind exception to the hearsay rule. See Elliot v. Commonwealth,
For the state of mind of the victim to be relevant to prove the state of mind of the accused, some nexus must exist which inferentiallyimplicates the accused, such as by showing “previous threats made by the defendant towards the victim, narrations of past incidents of violence on the part of the defendant or general verbalizations of fear of the defendant.”
(quoting United States v. Brown,
A. Rape Conviction
Although the jury could use the affidavit as evidence of Mrs. Crawford’s state of mind, I cannot find beyond a reasonable doubt that admission of the affidavit was harmless in relation to the rape conviction.
The affidavit did specifically allege that appellant had raped his wife only a few months prior to her murder, describing in detail an incident on August 14, 2004. As rape was the only crime with which appellant was charged that was specifically described and alleged by Mrs. Crawford in the affidavit, this document would have had more impact on the jury’s decision to convict appellant of rape than on the decision to convict him of the other charges.
In addition, the Commonwealth’s evidence, which proved Mrs. Crawford and appellant had recently had sexual intercourse, did not prove when or where this act of sexual intercourse occurred, nor did it prove whether the act was under duress or was consensual. Mrs. Crawford had not sustained any injuries to her genitalia. The police did not find any sperm or bodily fluids on the bed where they found Mrs. Crawford’s body nor did they find any indication that the sexual intercourse had occurred in the car. None of the Commonwealth’s evidence proved the age of the sperm found in Mrs. Crawford’s vagina or elsewhere in her body. Appellant never confessed to having sexual intercourse with his wife, although he did admit that he shot her and took her to the motel room. The Commonwealth’s evidence did prove that Mrs. Crawford had talked to appellant the night before her murder and that she appeared happy when her parents saw her just after that conversation. She also called appellant twice the next morning. Appellant claimed the parties were attempting to reconcile.
While the evidence taken as a whole without the affidavit certainly creates a strong suspicion that appellant did in fact rape his wife, I cannot find that the introduction of the affidavit for the truth of the matter therein was harmless beyond a reasonable doubt on the rape conviction. Given the many questions regarding the sexual intercourse between appellant and Mrs. Crawford that remained unanswered by the Commonwealth’s evidence, I believe that the affidavit’s allegation that appellant previously raped his wife must have had a significant impact on the jury’s decision to convict appellant of rape.
I would find that the admission of the affidavit in relation to appellant’s other convictions, excluding the rape conviction, was harmless beyond a reasonable doubt. The affidavit did not specifically allege that appellant had abducted, attempted to kill, or stolen from his wife previously, nor that he had previously threatened her with a gun. The affidavit was not the only evidence of appellant’s previous violence. In addition, appellant admitted that he shot his wife and that he took her to the motel room after shooting her.
Generally, the record contained many sources of information regarding appellant’s violence toward his wife. The affidavit, therefore, was merely cumulative of the other proof that rebutted appellant’s contention that he would not hurt his wife and actually intended to hurt himself. For example, the preliminary protective order itself, admitted without objection, stated that a court had previously found “evidence sufficient to establish probable cause that family abuse, including forceful detention, resulting in physical injury to [Mrs. Crawford] or placing [her] in reasonable apprehension of serious bodily injury,” had “recently occurred.” Mrs. Crawford’s father testified that appellant threw a table into the room and broke it when he accompanied his daughter to the marital home to remove her belongings. Her father also testified that appellant threatened his daughter. A police officer, who had responded to the couple’s home when Mrs. Crawford was moving out, testified that appellant’s manner was intimidating and overbearing and that Mrs. Crawford asked appellant if he was threatening her. Mrs. Crawford’s boss and a co-worker both testified about their knowledge of her fear of appellant. Her boss testified that he was not surprised to learn about the protective order against appellant, given the “history between them.”
In addition, appellant admitted that he shot his wife, although he claimed he shot her accidentally. However, appellant then covered up this “accident.” He threw both her cell phone and a box that had her blood on it out of the car. Rather than taking his wife to a hospital, he left her alone in a motel room in Charlottesville, Virginia, many miles from her home and family. If she was alive when appellant left her in that room, Mrs. Crawford would not have been able to move or call anyone for help, according to the expert testimony. After leaving her alone and immobile in the motel room, appellant did not call someone and get help for Mrs. Crawford. Instead, he drove to Florida in her car to visit relatives whom he had not seen in many years and who did not know he was coming. He did not mention the “accident” to them, and he appeared happy and untroubled to them. In addition, he had purchased a gun just days before the murder of Mrs. Crawford.
In the context of this evidence, the incidents mentioned in the affidavit were cumulative evidence of appellant’s violent history. Some witnesses actually testified about incidents described in the document, such as appellant throwing a table. Given this record, I find any error in admitting the affidavit was harmless in relation to the murder.
This same evidence supports a finding that the admission of the affidavit was harmless in relation to the abduction with intent to defile
The evidence of appellant’s intent to defile Mrs. Crawford was also sufficiently strong, even without the affidavit. After he took her to the motel, the evidence proved that appellant completely undressed Mrs. Crawford and placed her on the bed, as she was unable to move according to the medical expert. He then positioned her now totally nude body in a sexually suggestive manner and left her in the motel room in that position. This evidence clearly and sufficiently indicated an intention to defile at the time of the abduction, independent of any allegations in the affidavit.
In addition, regarding the use of a firearm during the commission of murder conviction, the use of a firearm during the commission of an abduction conviction, and the grand larceny conviction, the affidavit contained no information directly relevant to these charges. The document did not mention guns or the vehicle. The evidence proved that appellant purchased a gun just prior to the killing, and he admitted that he had a gun on the day of the shooting. He was found in possession of the stolen vehicle and admitted in his statement to the police that he drove it to Florida. Clearly the affidavit did not improperly influence the jury on these charges.
Overall, the evidence, considered as a whole, did not overwhelmingly support the
III. Sufficiency
I concur with the majority opinion that the evidence was sufficient to convict appellant of the crimes with which he was charged. As discussed in the harmless error analysis supra, even excluding the affidavit, I would find the evidence was sufficient to convict appellant of these crimes, except for the rape conviction.
CONCLUSION
In conclusion, I respectfully dissent from the majority’s decision to affirm appellant’s rape conviction, for the reasons stated supra. I concur in the majority’s overall conclusion that the remaining convictions should be affirmed, but for the reasons stated supra.
. The Commonwealth does not argue that the affidavit is admissible under some other evidence rule or exception to the Confrontation Clause’s bar on testimonial hearsay.
. It is interesting to note that the United States Supreme Court in Giles, which also considered the admissibility of an affidavit under the two-pronged forfeiture by wrongdoing doctrine, "accept[ed] without deciding” the concession that the affidavit was testimonial. Giles,-U.S. at-,
. I believe that the following analysis discussing the facts regarding creation of the affidavit should have and would have been conducted by the trial court, with testimony or proffers to support these evidentiary findings, if this issue had been contested by the Commonwealth. An appellate court should review this type of evidentiary analysis, not conduct it. However, as the majority opinion has determined that we should address this issue, I feel obligated to address the flaws that I find in that analysis, to the extent that I can, based on the record before us.
. Even in protective order proceedings, such affidavits are admitted only as evidence to allow the issuance of a 14-day preliminary protective order. For a permanent protective order (which lasts for two years in Virginia), the court must conduct a full hearing with the respondent present (or at least noticed) so that he or she can hear the evidence and defend against it. See Code § 16.1-253.1(B); Tsai v. Commonwealth,
. In this case, we do not know the circumstances surrounding the creation of Mrs. Crawford’s affidavit. We do not know the functions or motivations of the "intake officer” who notarized the affidavit, and, therefore, we cannot compare this person’s purposes to the purposes of a police officer or a 911 operator, or someone else, a consideration that the United States Supreme Court addressed in Davis.
. As the majority notes, the trial court here did not consider and was not asked to consider the third prong of the “traditional” forfeiture by wrongdoing doctrine—appellant’s intent to prevent the declarant from testifying. See Giles,-U.S. at-,
. Appellant did argue that some statements in the affidavit were too "remote” for the state-of-mind exception to apply or were irrelevant to Mrs. Crawford's state of mind. In response, the trial court redacted some content from the 2004 affidavit and completely excluded an earlier affidavit.
. Although the affidavit mentions that appellant placed a sofa against the Crawfords’ apartment door during one incident, it is doubtful that the jury would have perceived this act as an "abduction,” especially given the act of abduction that the jury was asked to consider.
. Appellant did not object to this conclusion by the witness.
. Under Fitzgerald v. Commonwealth,
. The capital murder indictment charged that appellant committed the premeditated murder of Mrs. Crawford while abducting her with the intent to defile her or while raping her. At trial, the jury was presented with Verdict Form No. A, which stated the choices before the juiy on this indictment as follows:
We, the jury, find the defendant, ANTHONY DALE CRAWFORD, guilty of the willful, deliberate and premeditated killing of Sarah Crawford in the commission of abduction with intent to defile Sarah Crawford and in the commission of the rape of Sarah Crawford. OR,
We, the juiy, find the defendant, ANTHONY DALE CRAWFORD, guilty of the willful, deliberate and premeditated killing of Sarah Crawford in the commission of abduction with intent to defile Sarah Crawford. OR,
We, the jury, find the defendant, ANTHONY DALE CRAWFORD, guilty of the willful, deliberate and premeditated killing of Sarah Crawford in the commission of rape of Sarah Crawford. OR,
We, the jury find the defendant, ANTHONY DALE CRAWFORD, guilty of first degree murder of Sarah Crawford. OR,
We, the jury, find the defendant, ANTHONY DALE CRAWFORD, guilty of the second degree murder of Sarah Crawford. OR,
We, the jury, find the defendant, ANTHONY DALE CRAWFORD, guilty of the second degree felony homicide of Sarah Crawford. OR,
We, the jury, find the defendant, ANTHONY DALE CRAWFORD, not guilty.
Each of these findings was followed by a line for the signature of the jury foreman. The jury foreman signed under the first finding, indicating that the jury found appellant guilty of committipg the premeditated murder of Mrs. Crawford while committing both abduction with the intent to defile and rape. Thus, the juiy clearly made the factual finding that appellant committed capital murder based on the predicate offense of abduction with intent to defile as well as on the predicate offense of rape. Therefore, on appeal, if the trial court's error was harmless in relation to either predicate offense, this Court may affirm appellant’s capital murder conviction.
. The medical examiner testified that Mrs. Crawford could have lived for an hour after she was shot. Appellant has never argued that Mrs. Crawford was already dead when he drove to the motel.
. This evidence of how appellant disrobed, placed, and positioned Mrs. Crawford in the motel room is directly relevant to the abduction with intent to defile charge, as appellant was still in the process of abducting her as he disrobed her and placed her in a provocative, sexually suggestive position—the position in which he left her. However, this evidence was not directly relevant to the rape conviction because the record does not indicate when or where the sexual intercourse between appellant and Mrs. Crawford occurred. The Commonwealth never proved whether the sexual intercourse occurred in the motel room or somewhere else, and the Commonwealth did not prove whether the sexual intercourse occurred before the shooting, prior to the abduction, or after appellant's rental of the motel room.
. On appeal, appellant challenged the sufficiency of the evidence supporting only the abduction with intent to defile conviction and the rape conviction. Therefore, the question of whether the evidence was sufficient to support his other convictions was not presented to this Court.
. In oral argument before this Court on rehearing en banc, appellant's counsel conceded—unlike at oral argument before the panel—that, when the affidavit is considered for the truth of the matter therein along with the other evidence admitted at trial, the evidence is sufficient for a jury to convict appellant of both rape and abduction with intent to defile. However, appellant continued to argue that the admission of the affidavit was error, was not harmless error, and, therefore, the convictions must still be reversed.