Anthony Dale CRAWFORD v. COMMONWEALTH of Virginia.
Record No. 1194-07-2.
Court of Appeals of Virginia, Richmond.
Dec. 29, 2009.
686 S.E.2d 557
Affirmed.
Leah A. Darron, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY; PETTY, BEALES, POWELL and ALSTON, JJ.
ROBERT J. HUMPHREYS, Judge.
BACKGROUND1
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
On October 29, 2004, Sarah and the Powers went to Crawford‘s apartment to pick up a few of Sarah‘s things.2 Sarah tried to get Crawford tickets to a sporting event to get him out of the apartment because she was “afraid of an incident” arising from her move. However, Crawford was present in the apartment when Sarah and the Powers arrived. As Sarah expected, Crawford was hostile toward her, refused to allow her to take any of her belongings, and, ultimately, called the police. When the police arrived, they asked Crawford to calm down and to allow Sarah to take her things. However, despite the police officer‘s request, Crawford‘s hostile behavior toward Sarah continued. According to the police officer, as Sarah packed up her belongings, Crawford approached her and whispered something in her ear. The officer could not determine what Crawford said to Sarah, but the officer testified that “it was something that obviously upset [Sarah],” because she “immediately stood up and stepped back away from [Crawford].” Sarah then asked Crawford to repeat what he said and asked if Crawford was threatening her. The officer ordered Crawford to back away from Sarah; however, he had to repeat this command several times before Crawford complied. At one point, Mrs. Powers heard Crawford tell Sarah, “You‘ll pay for this.”
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 30, 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.3 In the few weeks that the protective order was in effect, Sarah continued to have contact with Crawford.
As Sarah began to settle into her new life, she tried to take precautions for her own safety. Sarah chose the location of her desk at work because it overlooked the parking lot and allowed her to see if Crawford‘s vehicle was parked there. In addition, Sarah took a new route home every night after work. According to her supervisor, “[Sarah] would never go home the same way two days in a row because she didn‘t want someone to be able to follow her or know where she was going to be at any particular time, so she would always choose a new way.” Sarah also spoke to her parents several times each day. On November 1, 2004, Sarah sought help from Acts Turning Points, a domestic violence intervention program in Prince William County.
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
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
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 towel concealed a fatal gunshot wound to the right side of her chest. An assistant chief medical examiner for the Commonwealth determined that the bullet passed through Sarah‘s right lung and severed her spinal cord, rendering Sarah paralyzed, unable to walk or struggle. The medical examiner testified that, without medical treatment, Sarah could have lived up to an hour following such an injury. Investigators found seminal fluid in Sarah‘s vagina and spermatozoa in Sarah‘s mouth and anus. DNA recovered from the seminal fluid matched that of Crawford. In addition, investigators found Crawford‘s clothing, personal belongings, and fingerprints in the motel room. Cigarette butts in the motel room‘s ashtray contained Crawford‘s DNA, and a pill bottle bearing Crawford‘s name was also found in the room. The motel‘s clerk testified that Crawford arrived at the motel at 11:00 a.m. on November 19, 2004. Crawford was driving Sarah‘s car at the time5 and parked in the farthest spot from the front desk. Crawford told the clerk that he had been driving all night and asked for a quiet room, which he paid for with a $100 bill.
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
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.6 Without any explanation as to why, Crawford then stated that he pulled out his .38 revolver7 planning to commit suicide. Crawford said he had the gun cocked and his finger on the trigger when Sarah grabbed for the weapon. While they were
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 for leaving Sarah‘s body undressed in the position in which it was found, nor for failing to seek medical help for Sarah. Likewise, he offered no explanation as to why his semen was found in her vagina and his sperm was found in her mouth and anus.8
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, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). During the suppression hearing, the Commonwealth did not dispute that the affidavit was testimonial hearsay. Instead, the Commonwealth argued that under the doctrine of forfeiture by wrongdoing, the trial court should find that Crawford forfeited his right to confrontation. The trial court agreed with the Commonwealth and admitted a redacted copy of the affidavit on those grounds. A jury subsequently convicted Crawford of capital murder, abduction with intent to defile, rape, grand larceny, use of a firearm in the commission of a murder, and use of a firearm in the commission of abduction. Crawford appealed his convictions to this Court.
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 order9
and (2) failing to grant his motion to strike the charges of abduction with intent to defile and rape, “since there was insufficient evidence to permit these issues to go to the jury.”
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, 53 Va.App. 138, 670 S.E.2d 15 (2008). The panel majority held that the trial court‘s admission of the affidavit violated Crawford‘s rights under the Confrontation Clause. The majority further held that the evidence was insufficient to support Crawford‘s convictions for rape, abduction with intent to defile, and use of a firearm in the commission of abduction. The majority also reversed Crawford‘s conviction for capital murder, since it reversed the convictions on which the capital murder charge was based. The panel dissent disagreed with the majority only in its sufficiency analysis as to the charge of abduction with intent to defile.
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.10 For the following reasons, we disagree with Crawford and the analysis of both the panel majority and dissent, and we affirm Crawford‘s convictions.
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 his right to assert the Confrontation Clause to suppress the statements contained in the affidavit[ ].”
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, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the trial court‘s admission of the challenged affidavit violated his rights under the Confrontation Clause of the
“The Confrontation Clause of the
While this appeal was pending, the Supreme Court decided Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 2683, 171 L.Ed.2d 488 (2008).11 In Giles, the Court discussed both the history and applicability of the doctrine of forfeiture by wrongdoing as it pertains to a defendant‘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 2693 (emphasis added). In his concurrence, Justice Souter expounded upon the Court‘s rationale with respect to situations of domestic violence.
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 besatisfied 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 2695 (Souter, J., concurring) (emphasis added).
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.12 Id. at
128 S.Ct. at 2693. However, our analysis is not yet complete because, as the Commonwealth argues on brief, although the trial court admitted the affidavit based upon the applicability of the forfeiture by wrongdoing doctrine, another rationale for its admissibility is reflected in
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. 541 U.S. at 51, 124 S.Ct. at 1364. At the suppression hearing, the Commonwealth neither conceded nor disputed the trial court‘s analysis with respect to this issue. However, on appeal, the Commonwealth explicitly takes the position that the affidavit was not “testimonial,” and thus, not “within the scope of Crawford.”13 Initially, we note that the mere fact the Commonwealth did not dispute the testimonial character of the statements during the motion to suppress does not necessarily preclude us from addressing the issue on appeal.
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).
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, 547 U.S. at 821, 126 S.Ct. at 2273. Indeed, “[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id.
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, 126 S.Ct. at 2273-74 (emphasis added). “[T]his holding necessarily implies that consciousness on the part of the person reporting an emergency (or the police officer eliciting information about the emergency) that his or her statements might be used as evidence in a crime does not lead to the conclusion ipso facto that the statement is testimonial.” United States v. Ellis, 460 F.3d 920, 926 (7th Cir.2006) (emphasis added).15
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, 557 U.S. 305, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009). In fact, neither Melendez-Diaz, nor any
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, 547 U.S. at 822, 126 S.Ct. at 2273.
It is undisputed that Sarah made the statements contained in the affidavit for the purpose of obtaining a preliminary protective order17 pursuant to
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.
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, 53 Va.App. 488, 493, 673 S.E.2d 481, 483 (2009) (quoting Hargraves v. Commonwealth, 37 Va.App. 299, 312-13, 557 S.E.2d 737, 743 (2002)). In this case, the jury found the evidence, including the affidavit, sufficient to sustain Crawford‘s convictions. Therefore, we must also consider the affidavit in our sufficiency analysis. However, during oral argument, counsel for Crawford conceded that, if the affidavit were admissible, the evidence was sufficient to convict him of abduction with intent to defile and rape.
[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, 47 Va.App. at 173 n. 4, 622 S.E.2d at 773 n. 4. Given Crawford‘s concession we need not address the issue any
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.19
Affirmed.
ELDER, J., with whom FELTON, C.J., 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, 686 S.E.2d at 564 (quoting Giles v. California, 554 U.S. 353, 361, 128 S.Ct. 2678, 2684, 171 L.Ed.2d 488, 497 (2008)). I also concur in the majority opinion to the extent it holds that the trial court, “[b]y not
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 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 id. (quoting Giles, 554 U.S. at 377, 128 S.Ct. at 2693, 171 L.Ed.2d at 506). I believe the procedural history of this case, which stands in marked contrast to Giles, renders consideration of the issue of intent on remand improper.
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, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. I continue to adhere to the view of the panel majority that whether the affidavit was testimonial for purposes of Confrontation Clause analysis is not before us on appeal. However, even if the issue of whether the affidavit is testimonial is properly before us, I believe controlling authority of the United States Supreme Court compels the conclusion that it is, in fact, testimonial. Because I believe the victim‘s affidavit was erroneously admitted and that its admission was harmless only with respect to appellant‘s conviction for grand larceny, I would reverse his convictions for abduction with intent to defile, rape, capital murder, use of a firearm in the commission of abduction, and use of a firearm in the commission of murder, and I would remand for retrial.
Thus, I respectfully dissent from the majority‘s affirmance of all of appellant‘s convictions except grand larceny.
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, 686 S.E.2d at 565 (quoting Giles, 554 U.S. at 377, 128 S.Ct. at 2693, 171 L.Ed.2d at 506). I believe the procedural history of this case, which stands in marked contrast to Giles, renders consideration of the issue of intent on remand improper.
In Giles, trial occurred before the United States Supreme Court‘s decision in Crawford v. Washington. See People v. Giles, 40 Cal.4th 833, 55 Cal. Rptr.3d 133, 152 P.3d 433, 437 (2007). In Giles, “the issue of forfeiture by wrongdoing was not litigated below,” and “evidence of [the declarant‘s] hearsay statements was admitted under a statutory hearsay exception that appeared to be valid at the time [of the defendant‘s trial].” Id. (involving “a hearsay exception for out-of-court statements describing the infliction of physical injury on the declarant when the declarant is unavailable to testify at trial and the statements are trustworthy“). Although the forfeiture issue was not litigated below, the California Court of Appeal nevertheless “addressed the forfeiture issue [in Giles],” concluding the exception applied “because it was undisputed that [the declarant] was unavailable to testify because of her death and that her death was the result of [the] defendant‘s actions.” Id. Thus, the People had no opportunity at trial to present evidence regarding whether the defendant killed the victim with the intent to prevent her from testifying.
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 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., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006); see also Montague v. Commonwealth, 40 Va.App. 430, 438-39, 579 S.E.2d 667, 671 (2003) (applying this principle where the defendant conceded at trial that the license number on the vehicle he drove was the same as the license number of the stolen vehicle, thereby preventing him from arguing on appeal that the license numbers were different). “The Commonwealth[, like any other litigant,] will not be allowed to approbate and reprobate.” In re Commonwealth, 278 Va. 1, 13, 677 S.E.2d 236, 241 (2009) (“We will not permit the Commonwealth to ask the circuit court during the remanded hearing on mental retardation to exercise discretion and rule upon other legal issues but, inconsistently, assert in the mandamus proceeding that the circuit court lacked legal authority to do so.“).
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, 222 Va. 454, 465, 281 S.E.2d 857, 862 (1981), allows the Attorney General to repudiate a factual concession believed to have been taken erroneously by the
Further, the majority implies that the Court in Giles created a whole new test for establishing forfeiture by wrongdoing in the domestic context. See id. I disagree. As the majority articulates in the text prior to that footnote, the Supreme Court indicated merely that “in a case of ongoing domestic violence,” “a defendant‘s intention to prevent testimony might be inferred from the surrounding circumstances.” See supra at 473, 686 S.E.2d at 564. Under well established principles, in any case in which proof of intent is required, intent may and often must be established with circumstantial evidence, and evidence probative of that intent may include the accused‘s statements and conduct, see, e.g., Howard v. Commonwealth, 207 Va. 222, 228, 148 S.E.2d 800, 804 (1966) (citing Merritt v. Commonwealth, 164 Va. 653, 662, 180 S.E. 395, 399 (1935)), including prior bad acts of the accused toward the victim, see, e.g., Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). Thus, the Court‘s discussion in Giles of the fact that intent supporting admissibility may be proved with evidence of “[e]arlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help” or “evidence of ongoing criminal proceedings at which the
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.
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 theFifth Amendment to the Constitution of the United States orArticle I, Section 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 orSixth Amendments to the Constitution of the United States orArticle I, Section 8 ,10 or11 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 to mandatory 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 orsubsection 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
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, 37 Va.App. 658, 665, 561 S.E.2d 12, 16 (2002) (noting that although we may, under appropriate circumstances, “affirm the decision of the trial court when it has reached the right result for the wrong reason[,] . . . “the Commonwealth cannot use [this principle] as a subterfuge for a constitutionally prohibited cross-appeal” ” (quoting Driscoll v. Commonwealth, 14 Va.App. 449, 452, 417 S.E.2d 312, 313 (1992))); see also Hart v. Commonwealth, 221 Va. 283, 289-90, 269 S.E.2d 806, 810-11 (1980).
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, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), is flawed, as a careful analysis of the Supreme Court‘s decisions in Crawford, Davis, and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), reveals.
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, 541 U.S. at 51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193. Declining to adopt a specific definition, the Court held that “[r]egardless of the precise articulation, some statements qualify under any definition,” and it gave as examples “ex parte testimony at a preliminary hearing,” “before a grand jury, or at a former trial,” and “[s]tatements taken by police officers in the course of interrogations.” Id. at 52, 68, 124 S.Ct. at 1364, 1374, 158 L.Ed.2d at 193, 203. It noted that “[a]n 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.” Id. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192.
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. 547 U.S. at 822, 126 S.Ct. at 2273-74, 165 L.Ed.2d at 237. It noted it did not hold “that statements made in the absence of
[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, 547 U.S. at 826, 126 S.Ct. at 2275-76, 165 L.Ed.2d at 239. Finally, it observed,
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 pur-
Id. at 826, 126 S.Ct. at 2276, 165 L.Ed.2d at 239-40.
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, 126 S.Ct. at 2274 n. 2, 165 L.Ed.2d at 238 n. 2. Thus, Davis unequivocally does not stand for the proposition that a prior statement, regardless of its form, nature or context, is testimonial only upon proof that its “primary purpose” was “to establish or prove past events potentially relevant to later criminal prosecution.” 547 U.S. at 822, 126 S.Ct. at 2274, 165 L.Ed.2d at 237.
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 which showed that material seized by the police and connected to the defendant was cocaine.” In the course of holding the certificate at issue contained testimony subject to the requirements of the Confrontation Clause, the Court provided clarification concerning what types of statements are testimonial. 557 U.S. at 310-11, 129 S.Ct. at 2531-32, 174 L.Ed.2d at 321. It quoted the three “formulations of this core class of testimonial statements” it had recited in Crawford. Id. at 310, 129 S.Ct. at 2531, 174 L.Ed.2d at 321. The Court had noted in Crawford that these descriptions “share[d] a common nucleus and then define[d] the Clause‘s coverage at various levels of abstraction around it,” but it declined in Crawford to adopt one test over the others. 541 U.S. at 51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193.
In Melendez-Diaz, however, the Court quoted all three tests as “describ[ing] 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 descrip-
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 311, 129 S.Ct. at 2532, 174 L.Ed.2d at 321-22 (citation omitted) (first emphasis added); see id. at 329, 129 S.Ct. at 2543, 174 L.Ed.2d at 333 (Thomas, J., concurring in part and concurring in the judgment).
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 310, 129 S.Ct. at 2532, 174 L.Ed.2d at 321 (quoting Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193); id. at 329, 129 S.Ct. at 2543, 174 L.Ed.2d at 333 (Thomas, J., concurring in part and concurring in the judgment). Such knowledge is inherent in the nature of making a sworn statement, thereby obviating the need for separate proof. Here, the affidavit Mrs. Crawford signed under oath was testimonial under this definition.
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, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192. She completed the affidavit to support her request for a protective order against appellant, her alleged domestic abuser. Because the affidavit was a sworn statement designed to protect Mrs. Crawford from her husband‘s potentially criminal harassment, it is clear that the declarant, Mrs. Crawford, would reasonably expect the statement would be “potentially relevant to [and available for use in a] later criminal prosecution” on the subject if one should arise. See Davis, 547 U.S. at 822, 126 S.Ct. at 2274, 165 L.Ed.2d at 237.
“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, 485 U.S. at 632, 108 S.Ct. at 1430, 99 L.Ed.2d at 732. Because a protective order, by its very nature, forbids certain conduct, the punishment for violating it most closely resembles criminal contempt. Further reinforcing this inference is that, pursuant to the express terms of the statutory scheme, once a protective order has been issued and served on the party against whom it was entered, any violation of the order subjects the party both to liability for contempt of court and to the explicit “penalty” of being found “guilty of [at least] a Class 1 misdemeanor.”
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. For the reasons set out in Part II(A)(2) of the panel majority in this case, see Crawford v. Commonwealth, 53 Va. App. 138, 152-62, 670 S.E.2d 15, 22-26 (2008), I would conclude the erroneous admission of this evidence was harmless only as to appellant‘s conviction for grand larceny and was not harmless as to his remaining convictions, thereby requiring their reversal and remand for retrial.20
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.
BEALES, J., with whom ALSTON, J., 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
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 trial court‘s analysis” on the issue of testimonial hearsay. I disagree. An analysis of the record in this case clearly establishes that the Commonwealth conceded this point, even if the prosecutor did not take the ultimate step and explicitly state that he agreed with appellant‘s characterization of the evidence as testimonial hearsay. Therefore, because of the facts the trial court found (and did not find) and presumed in reaching this legal conclusion, I do not believe this case presents an appropriate situation for the application of the “right result/wrong reason” doctrine. See Whitehead v. Commonwealth, 278 Va. 105, 115, 677 S.E.2d 265, 270 (2009), modified, No. 080775 (Oct. 22, 2009).
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 Confronta-
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
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 was testimonial. Indeed, the Commonwealth‘s response to the motion in limine labeled the affidavit “testimonial” and never called it “nontestimonial,” yet the response did discuss other statements that it labeled “nontestimonial.” As a result, the Commonwealth had the burden at trial to establish an exception that would allow the jury to hear the evidence, given the Confrontation Clause‘s bar on the use of testimonial hearsay in criminal trials. The Commonwealth at trial relied on only one exception—a two-pronged forfeiture by wrongdoing doctrine. The trial court applied that doctrine as advocated by the Commonwealth and admitted the affidavit under what it believed to be an exception to the Confrontation Clause, an exception later struck down by the Supreme Court in Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008). In short, the trial court here took the very action recommended by the Commonwealth, applying the two-pronged forfeiture by
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, 278 Va. at 115, 677 S.E.2d at 270. Here, I would find that the doctrine should not be applied because additional facts, beyond those that the trial court was asked to consider, must be reviewed in order to determine whether Mrs. Crawford‘s affidavit was non-testimonial hearsay. Therefore, I believe that the majority opinion errs in its consideration of the Commonwealth‘s new argument—that the affidavit is non-testimonial hearsay—on appeal.
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
The majority opinion concedes that at least some affidavits are testimonial hearsay, but then attempts to distinguish affidavits that are not testimonial from those affidavits that are testimonial by arguing that the Court must examine the “primary purpose” for the creation of the document. However, the majority opinion fails to acknowledge that, in determining the “primary purpose” for the creation of the affidavit, the Court must consider the evidence and the facts surrounding the creation of the affidavit in order to establish such a purpose. Although the legal question of whether evidence is inadmissible testimonial hearsay may be reviewed de novo, as the majority opinion contends, the question presented in this case requires that various facts be determined to support the majority opinion‘s assertion that “the primary purpose of the affidavit was not to ‘prove past events potentially relevant to later criminal prosecution.‘”
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
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, therefore, should assume that the affidavit is testimonial hearsay.22
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
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.
541 U.S. at 51, 124 S. Ct. at 1364 (brackets in original) (emphasis added). The Court listed “[v]arious formulations of this core class of ‘testimonial’ statements,” including affidavits, in that list. Id.
Two years later, the Supreme Court refined the definition of testimonial hearsay in Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), which consolidated two criminal cases—Davis‘s and Hershel Hammon‘s. The Supreme Court found that the statement presented at Davis‘s trial was not testimonial hearsay, but the affidavit presented at Hammon‘s trial was testimonial. Id. at 828, 834, 126 S. Ct. at 2277. In comparing these two fact patterns, the Supreme Court developed a refinement of Crawford that is particularly relevant here, although it is overlooked by the majority opinion.
The statement involved in Davis‘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, 126 S. Ct. at 2271. The
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, 126 S. Ct. at 2273-74 (footnote omitted).
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, 126 S. Ct. at 2274 n.1. The Supreme Court noted in its discussion of Davis‘s case that most cases applying the Confrontation Clause “involved testimonial statements of the most formal sort—sworn testimony in prior judicial proceedings or formal depositions under oath,” but concluded 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.” Id. at 826, 126 S. Ct. at 2276.
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, 126 S. Ct. at 2276. The Court then found that McCottry
Id. at 828, 126 S. Ct. at 2277. The Court found McCottry‘s statements to the 911 operator were not testimonial, but it also noted that later parts of the conversation might indeed be testimonial hearsay, but those later statements were not the subject of the appeal. Id. at 828-29, 126 S. Ct. at 2277-78.
The Supreme Court found Amy Hammon‘s statement presented “a much easier task,” given the ruling in Crawford v. Washington. Id. at 829, 126 S. Ct. at 2278. The Court explained:
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, 126 S. Ct. at 2278. The Court also pointed out, in comparing the Davis and Hammon statements, that
Id. at 831-32, 126 S. Ct. at 2279.
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, 557 U.S. 305, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314 (2009), which was also found to violate the Confrontation Clause.
The majority argues that the affidavit here was part of a civil proceeding and that, therefore, it was not intended for “prosecution” and cannot be testimonial, pointing to the “primary purpose” language in Davis. However, this position ignores the context of the Supreme Court‘s “primary purpose” language. As the discussion above illustrates, the Supreme Court was comparing two specific examples of hearsay, one in which the declarant clearly was not concerned about future prosecution, but instead was concerned about an immediate emergency. In the contrasted case involving Hammon, the statement was given to police officers, but the record does not indicate that it was prepared with the understanding that the statement would be presented at trial. The Supreme Court
Mrs. Crawford apparently gave her affidavit, at minimum, to obtain a preliminary protective order, under
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.24 Although not all of the
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
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
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, 554 U.S. at 359-68, 128 S. Ct. at 2683-88, 171 L. Ed. 2d at 495-501 (discussing the two-pronged version of forfeiture by wrongdoing and finding that this version of the doctrine is not an exception to the Confrontation Clause that permits introduction of testimonial hearsay at criminal trial).26
II. Harmless Error
Although I would find the trial court erred in admitting the affidavit for the truth of the matters asserted therein, I would conclude that this error was harmless, except in the case of the rape conviction. Thus, I concur with the final holding of the majority opinion that affirms all of the convictions here, with the exception of the holding regarding the rape conviction, from which I respectfully dissent.
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
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, 259 Va. 117, 123, 524 S.E.2d 121, 124-25 (2000). In short, the Commonwealth bears the burden of proving that any constitutional error is harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24, 87 S. Ct. at 828; Joyner v. Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558-59 (1951).
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.
I would find that the affidavit was properly admissible under the state-of-mind exception to the hearsay rule. See Elliot v. Commonwealth, 30 Va. App. 430, 437-38, 517 S.E.2d 271, 275 (1999) (discussing the state-of-mind exception to the hearsay rule). As the Court explained in Hanson v. Commonwealth, 14 Va. App. 173, 188-89, 416 S.E.2d 14, 23 (1992):
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 inferentially implicates 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, 490 F.2d 758, 765-66 (D.C. Cir. 1973)). The affidavit clearly showed previous threats that appellant had made, past incidents of violence by him, and generally expressed Mrs. Crawford‘s fear of him. If the affidavit had been admitted solely for use as evidence of the victim‘s state of mind, rather than also for the truth of the statements that it contained, then the trial court would not have committed error. Therefore, while this harmless error
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.28 See Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999) (“In making that determination [of harmless error beyond a reasonable doubt], the reviewing court must consider a host of factors, including the importance of the tainted evidence in the prosecution‘s case . . . .“); Young v. Commonwealth, 47 Va. App. 616, 634, 625 S.E.2d 691, 700 (2006) (noting that the evidence of other crimes that was improperly admitted included several robberies, the crime for which Young was on trial), rev‘d on other grds., 273 Va. 528, 643 S.E.2d 491 (2007); Boney v. Commonwealth, 29 Va. App. 795, 801-02, 514 S.E.2d 810, 813 (1999) (discussing the factual similarity between the erroneously admitted evidence of Boney‘s prior bad acts and the appealed convictions).
In addition, the Commonwealth‘s evidence, which proved Mrs. Crawford and appellant had recently had sexual inter-
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.
B. The Remaining Convictions
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,
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.”29 Thus, the affidavit‘s allegations of general violence and threats were merely cumulative of the other evidence presented by the Commonwealth.
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
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 defile30 conviction, a predicate offense for the capital murder conviction.31 Appellant admitted to the police in Flori-
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
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 rape conviction—independent of the affidavit‘s accusations of appellant‘s previous rape of Mrs. Crawford. Given this record, and the clear accusation in the affidavit that appellant previously raped his wife, I cannot find that the admission of the affidavit for the truth of the matter therein was harmless in relation to the rape conviction beyond a reasonable doubt. However, I would find that the affidavit was harmless in relation to all of appellant‘s other convictions,
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.34 When the affidavit is considered together with the rest of the evidence presented at trial, as it must be in a sufficiency analysis, see Sprouse v. Commonwealth, 53 Va. App. 488, 493, 673 S.E.2d 481, 483 (2009), I would also find that a rational factfinder could conclude that the evidence was sufficient to convict appellant of rape.35 Thus, I would reverse only the rape conviction and, rather than dismissing it, I would remand for a new trial, solely on the rape indictment, if the Commonwealth be so inclined. See Rankins v. Commonwealth, 31 Va. App. 352, 373, 523 S.E.2d 524, 534 (2000) (finding a Confrontation Clause error was not harmless and remanding for a new trial). However, I concur with the majority opinion‘s conclusion that the remainder of the convictions should be affirmed, as the trial court‘s error was harmless beyond a reasonable doubt and the evidence before the jury was sufficient to convict appellant of those crimes.
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.
Notes
As provided by
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, 47 Va. App. 168, 172 n.4, 622 S.E.2d 771, 773 n.4 (2005) (en banc) (reasoning that where an appellate court accepts a concession on a legal issue, that concession provides “not . . . a basis for deciding [the earlier] contested issue of law, but . . . a basis for not deciding it” (emphasis added)).
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 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.
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,
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 committing the premeditated murder of Mrs. Crawford while committing both abduction with the intent to defile and rape. Thus, the jury 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.