Gardner v. Commonwealth ( 2014 )

PRESENT: All the Justices
MICHAEL ARMIN GARDNER
OPINION BY
v. Record No. 131166 JUSTICE S. BERNARD GOODWYN
June 5, 2014
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in affirming the circuit court’s exclusion of evidence
of good character sought by the defendant.
Procedural and Factual Background 1
In the Circuit Court of Arlington County, Michael Armin
Gardner (Gardner) was charged with three counts of aggravated
sexual battery in violation of Code § 18.2-67.3 and one count
of object sexual penetration in violation of Code § 18.2-67.2.
The charges arise from events alleged to have taken place
during sleepovers at his home on June 16 and June 18, 2011,
and involve pre-teen girls who were friends of his daughter.
After a jury trial, Gardner was found guilty of two counts of
aggravated sexual battery and one count of object sexual
penetration. 2
1
We will address only those facts and procedures
relevant to the dispositive issue.
2
The circuit court declared a mistrial on one count of
aggravated sexual battery after the jury was unable to reach a
unanimous verdict on that charge. That charge is not
presently at issue in this appeal.
Gardner appealed his convictions to the Court of Appeals,
which denied his petition for appeal. Gardner v.
Commonwealth, Record No. 1831-12-4 (June 21, 2013). This
Court granted Gardner’s petition for appeal. The dispositive
issue for purposes of this appeal is whether the Court of
Appeals erred in affirming the judgment of conviction despite
the circuit court’s refusal to permit Gardner to elicit
evidence of his good character through two witnesses. 3
While presenting its case at trial, the defense called
six character witnesses. In addition to presenting evidence
of Gardner’s character for truth and veracity, Gardner also
attempted to question two of those character witnesses, Laurie
Ombrembt (Ombrembt) and Katherine Allan (Allan), about his
reputation in the community for being a good caretaker of
children and for not being sexually assaultive or abusive
toward them.
Specifically, Gardner’s counsel asked Ombrembt, “Do you
know if Mr. — what Mr. Gardner’s reputation is, among those
who know him as well, for being someone who would be a good
caretaker of children as opposed to someone who would harm or
abuse or be neglectful of them?” The Commonwealth objected
3
Although Gardner asserts additional assignments of
error, we need not address them because this assignment of
error is dispositive. See, e.g., Board of Supervisors v.
Davenport & Co., 285 Va. 580, 591-92, 742 S.E.2d 59, 64
(2013).
2
and argued that Gardner was limited to presenting character
evidence relating to “a reputation for truthfulness and
veracity or for peacefulness.” In response, Gardner argued to
the circuit court that he was entitled to present evidence
regarding his reputation for possessing traits related to the
crimes charged and that reputation evidence could be in the
form of negative testimony regarding his not having a
reputation for possessing a certain trait.
The Commonwealth then argued that
it is the defendant’s reputation at the time of the
incident which is at issue here, so if the neighbors
had a discussion that he’s never known to be a
pedophile, that would be one thing if they had a
discussion in the neighborhood about that, but I
doubt that they did until after the incident and I
don’t think he can prove that up through this
witness or any other.
Immediately thereafter, the circuit court stated, “I
agree,” and sustained the Commonwealth’s objection to the
character evidence sought by Gardner.
Gardner then proffered the following:
Your Honor, we would proffer, then, that Ms.
Ombrembt . . . would testify that - beyond what
she’s already testified to - that there is no
evidence of a negative sort that Mr. Gardner has
been involved in any sort of abusive, physical,
sexual, neglectful behavior with children.
That that is current and that that is including
the time period of mid-June of 2011 and the time
frame leading up to that; that she has knowledge of
that, of people’s involvement with Mr. Gardner; that
they have expressed that they allow and would allow
3
[their] kids to be with him, to be supervised with
him; and that they have no evidence, no indication,
of any sort of bad conduct, sexual conduct, with
minor children during that time. . . . And she’s
never heard any of that.
Gardner called Allan as his next witness. After
establishing her knowledge of Gardner’s reputation in the
community and questioning Allan about Gardner’s reputation for
truth and veracity, Gardner, without objection, asked the
circuit court to incorporate his earlier questions to Ombrembt
and proffer as part of Allan’s testimony.
In its order denying Gardner’s appeal and affirming the
circuit court’s ruling regarding the Commonwealth’s objection
to Gardner’s character evidence inquiry, the Court of Appeals
stated that there was no evidence that the witnesses had
discussed the characteristic of being a good caretaker of
children and not being abusive or assaultive toward them prior
to Gardner’s being charged with the offenses. The court noted
that the proffered testimony of the reputation witnesses
focused on the suggestion that Gardner had not been involved
previously in any sort of abusive, physical, sexual or
neglectful behavior with children and that these witnesses
knew individuals who would allow Gardner to supervise their
children. The Court of Appeals then concluded that the
circuit court did not preclude testimony as to the general
reputation evidence that existed regarding Gardner prior to
4
his being charged with the offenses and affirmed the judgment
of the circuit court. Considering the Commonwealth’s
objections and Gardner’s proffer in the context in which they
were presented at trial, we conclude that this ruling of the
Court of Appeals was erroneous.
Analysis
Gardner claims that the circuit court misapplied the law
by ruling that truth and veracity were the only admissible
traits or, alternatively, that the reputational evidence
sought was not within a relevant time period. Gardner claims
the Court of Appeals erred in not reversing the convictions
and by ruling that the circuit court did not preclude
testimony as to Gardner’s general reputation prior to his
being charged with the offenses.
By asking Ombrembt and Allan to testify about their
personal knowledge of his “reputation in the community for a
character trait at issue in the case,” Gardner maintains he
laid the proper foundation for admission of the additional
character testimony he sought from them. He claims his
proffer addressed the Commonwealth’s claim that the character
testimony he sought did not relate to his reputation prior to
being charged with the offenses. Gardner proffered that the
reputation evidence he sought from the witnesses included “the
time period of mid-June of 2011 and the time frame leading up
5
to it.” According to Gardner, the proffer also provided
additional foundational information to support the
reputational evidence he wanted admitted.
The Commonwealth acknowledges Gardner’s proffer
“reference[d] the relevant time period.” However, it argues
that “though [Gardner] asserted Ombrembt and Allan were aware
of the assessment of Gardner by particular individuals as it
related to their children, [he] failed to place this proffer
into the larger context of community opinion.” The
Commonwealth disagrees that Gardner’s proffer was merely
laying a foundation. According to the Commonwealth, Gardner’s
proffer focused on Ombrembt’s and Allan’s own personal
knowledge, which is impermissible as character evidence.
A trial court exercises its sound discretion when it
decides whether to admit character evidence in the form of
witness testimony in a criminal trial. See Zirkle v.
Commonwealth, 189 Va. 862, 872, 55 S.E.2d 24, 30 (1949).
However, although a trial court exercises its discretion in
admitting or excluding evidence, the court may not exercise
its discretion to exclude admissible evidence. See Gray v.
Rhoads, 268 Va. 81, 86, 597 S.E.2d 93, 96 (2004). This is
because admissibility of evidence is determined by legal
principles. Id.
6
At trial, the Commonwealth objected, on two grounds, to
Gardner’s question that sought the disputed character
evidence. It first objected to the question because the
Commonwealth believed Gardner was limited to character
evidence concerning reputation for truthfulness, veracity or
peacefulness. Secondly, the Commonwealth claimed that the
question sought inadmissible reputation evidence because the
evidence did not exclusively concern Gardner’s reputation
before the incident. As a matter of law, neither ground was a
proper basis for sustaining the Commonwealth’s objection to
Gardner’s question that sought the proposed character
evidence.
We have repeatedly stated that a defendant is not limited
solely to reputation evidence regarding truthfulness, but may
offer evidence to prove good character for any trait relevant
in the case. See Barlow v. Commonwealth, 224 Va. 338, 340,
297 S.E.2d 645, 646 (1982); Zirkle, 189 Va. at 871, 55 S.E.2d
at 29; see also Va. R. Evid. 2:404(a)(1) (permitting character
evidence in the form of “[e]vidence of a pertinent character
trait of the accused offered by the accused”). Character is
used as a synonym for reputation. Zirkle, 189 Va. at 871, 55
S.E.2d at 29. “A person on trial for a criminal offense has
the right to introduce evidence of his good character, on the
theory that it is improbable that a person who bears a good
7
reputation would be likely to commit the crime charged against
him.” Id. For this reason, the circuit court erred as a
matter of law to the extent it sustained the Commonwealth’s
objection and excluded Gardner’s character evidence based upon
the Commonwealth’s stated objection that character evidence is
limited to a defendant’s character for truth and veracity or
for peacefulness.
Likewise, case law does not support the Commonwealth’s
argument at trial, accepted by the circuit court and affirmed
by the Court of Appeals, that Gardner’s character evidence was
restricted to his reputation before being criminally charged.
The Commonwealth cites no Virginia case that supports
excluding evidence offered to bolster a defendant’s character
on that basis. Prior decisions of this Court and of the Court
of Appeals demonstrate that reference to post-offense conduct
or conversations in cross-examining a defense character
witness may be restricted in the discretion of the trial
court, but none of these cases asks the impossible: that a
defense character witness not testify to the defendant’s
reputation at the time of trial but reconstruct what that
reputation was prior to the offense. See Ginger v.
Commonwealth, 137 Va. 811, 814-15, 120 S.E. 151, 152 (1923)
(prosecution rebuttal character witness could not testify
without knowledge of the general reputation of the defendant
8
before or after the offense); Mohler v. Commonwealth, 132 Va.
713, 735-36, 111 S.E. 454, 461-62 (1922) (in rebutting defense
character evidence, prosecution cannot offer proof of a
reputation adversely affected by the pendency of the present
prosecution); Carter v. Commonwealth, 4 Va. (2 Va. Cas.) 169,
169-70 (1819) (witness without knowledge of the defendant’s
character could not recount conversation with third party held
after the pending charges were brought); Gravely v.
Commonwealth, 13 Va. App. 560, 564, 414 S.E.2d 190, 192 (1992)
(on cross-examination of defense character witness
Commonwealth may not question about unrelated offenses
occurring after the date of the events giving rise to the
pending charges).
Generally, “in a criminal prosecution [if the prosecution
is allowed to offer evidence of the defendant’s bad character
for a particular trait] the evidence must be limited to [the
defendant’s] general reputation ante litem motam,” i.e.,
before the defendant was accused of the crime or the trial
began. Brotherhood of Railroad Trainmen v. Vickers, 121 Va.
311, 314, 93 S.E. 577, 578 (1917). The purpose of this
evidence rule is to prevent admission of untrustworthy adverse
reputation character evidence engendered by the very fact of
the pending charges from unfairly influencing the jury’s
9
verdict. 4 See Ginger, 137 Va. at 815, 120 S.E. at 152
(“[U]nfounded suspicions engendered by the accusation may
serve to color the reputation and render it untrustworthy”)
(internal quotation marks and citation omitted). 5
The rationale for the restriction on adverse character
proof does not apply when a defendant offers evidence of his
good reputation. Any character witness who is prepared to
testify as to the defendant’s good reputation after the
defendant has been accused of a crime has certainly not formed
“unfounded suspicions engendered by the accusation.” Id.
Additionally, the Commonwealth argues that the Court of
Appeals did not err in affirming the convictions because the
circuit court correctly ruled that Gardner had to provide
evidence that the witnesses had discussed the relevant
characteristics prior to Gardner’s being charged for their
testimony to be admissible. However, the Court of Appeals has
previously ruled otherwise. In Byrdsong v. Commonwealth,
4
See generally 5 Wigmore, Evidence § 1618, at 492-93 (3d
ed. 1940) (collecting cases).
5
See generally Christopher Mueller & Laird Kirkpatrick,
Evidence § 419 (3d ed. 2003) (citing case law for the
proposition that a defendant’s “reputation in the community
after the charge became publicized might not be a trustworthy
index to his actual character”); Roger Park, et al., Evidence
Law § 5.07 & n.80 (3d ed. 2011) (citing cases where the
prosecution’s attempt to rebut defendant’s character proof
with reputation affected by the existence of the pending
charges was disallowed).
10
2 Va. App. 400, 407, 345 S.E.2d 528, 532 (1986), the character
witness frankly admitted that “[the defendant’s reputation]
came up after this case came up, but I can’t pinpoint anybody
ever having the need to discuss [whether] he was telling the
truth before this came up.” 6 (Emphasis in original.) The
Court of Appeals correctly held in Byrdsong that the trial
court should have allowed the jury to hear the witness’s
testimony. Id. at 406, 345 S.E.2d at 532. To the extent the
circuit court sustained the Commonwealth’s objection because
Gardner failed to show his character witnesses had discussed
his reputation prior to the incident, or because their
testimony might have included evidence of Gardner’s reputation
as of the day of trial, the circuit court erred.
Although the circuit court erred in sustaining the
objection to Gardner’s character evidence questions, we must
6
Our law permits character evidence based on what the
witness has heard about the defendant and what the witness has
“not heard in the community,” which makes any requirement of
prior discussion by the witness obviously inapplicable. See
Jackson v. Commonwealth, 266 Va. 423, 440, 587 S.E.2d 532, 544
(2003); Zirkle, 189 Va. at 871-72, 55 S.E.2d at 29-30;
Byrdsong, 2 Va. App. at 406, 345 S.E.2d at 531. Generally,
there is no requirement that the defense character witness
have engaged in prior discussions of defendant's character for
the traits at issue. See also Michelson v. United States, 335
U.S. 469, 478 (1948) (approving testimony that the witness had
heard nothing ill of the defendant). See generally, e.g.,
Kenneth Broun, et al., McCormick on Evidence, § 43 (6th ed.
2006) (describing requirements for a character witness's
knowledge of the defendant's reputation with no mention of a
prior discussion requirement).
11
consider the proffer to determine whether the circuit court’s
error prejudiced Gardner. See Commonwealth Transp. Comm’r v.
Target Corp., 274 Va. 341, 348, 650 S.E.2d 92, 96 (2007)
(holding that without a proper proffer, this Court was unable
to determine whether the trial court’s ruling on admissibility
of the evidence prejudiced the appellant). “Error may . . .
be predicated upon . . . exclusion of evidence [if] the
substance of the evidence was made known to the court by
proffer.” Va. R. Evid. 2:103(a)(2). Counsel is required to
proffer the substance of the anticipated testimony. Whittaker
v. Commonwealth, 217 Va. 966, 968-69, 234 S.E.2d 79, 81
(1977); Scott v. Commonwealth, 191 Va. 73, 78-79, 60 S.E.2d
14, 16 (1950); Owens v. Commonwealth, 147 Va. 624, 630-31, 136
S.E. 765, 767 (1927); Union Central Life Ins. Co. v. Pollard,
94 Va. 146, 156-57, 26 S.E. 421, 423-24 (1896).
A criminal defendant may prove his good reputation for a
particular character trait by presenting “[n]egative evidence
of good character.” Zirkle, 189 Va. at 871, 55 S.E.2d at 29.
“Negative evidence of good character is based on the theory
that a person has a good reputation if that reputation has not
been questioned.” Jackson v. Commonwealth, 266 Va. 423, 439,
587 S.E.2d 532, 544 (2003). “A witness may testify that he or
she has never heard that the accused has the reputation of
possessing a certain trait.” Chiles v. Commonwealth, 12 Va.
12
App. 698, 700, 406 S.E.2d 413, 415 (1991). We conclude that
Gardner’s proffer was sufficient to demonstrate the substance
of the evidence of Gardner’s character that would have been
provided, if the circuit court had not erroneously sustained
an objection to Gardner’s inquiry concerning his character,
and it would have been favorable to Gardner.
A jury may consider character evidence in determining a
criminal defendant’s guilt and punishment. Zirkle, 189 Va. at
871, 55 S.E.2d at 29. Considering the evidence presented at
trial and the fact that the jury could not reach a unanimous
verdict on one count of aggravated sexual battery, we cannot
say with fair assurance that the circuit court’s exclusion of
Ombrembt’s and Allan’s character testimony did not
“substantially sway[]” the jury’s determination of Gardner’s
guilt. See Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d
728, 731-32 (2001) (“[I]f one cannot say, with fair assurance,
after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to
conclude that substantial rights were not affected. . . .
If so, or if one is left in grave doubt, the conviction cannot
stand.”) (quoting Kotteakos v. United States, 328 U.S. 750,
764-65 (1946)). Thus, we cannot say that the circuit court’s
sustaining of the Commonwealth’s objection resulting in the
13
exclusion of Gardner’s character evidence was harmless error.
See Barlow, 224 Va. at 342, 297 S.E.2d at 647 (holding that
the exclusion of defendant’s character evidence of nonviolence
was not harmless error, despite defendant’s opportunity to
present evidence of his reputation for being “honest and hard-
working”); see also Michelson v. United States, 335 U.S. 469,
476 (1948) (recognizing “[the] privilege [of presenting
character evidence] is sometimes valuable to a defendant
[because] such testimony alone, in some circumstances, may be
enough to raise a reasonable doubt of guilt”).
Conclusion
We hold that the Court of Appeals erred in denying
Gardner’s appeal, because the circuit court erred by
sustaining the Commonwealth’s objection to Gardner’s question
that sought admissible character evidence. Furthermore, we
cannot say that such error was harmless. Therefore, we will
reverse the judgment of the Court of Appeals, vacate the
convictions, and remand this case to the Court of Appeals
directing that it remand the case to the circuit court for
further proceedings if the Commonwealth be so inclined.
Reversed and remanded.
14
JUSTICE LEMONS, concurring.
I join the majority opinion in its entirety and write
this concurrence to emphasize one additional matter which will
be relevant upon remand – the joinder of the separate offenses
under Rule 3A:10(c).
Gardner assigns error to the Court of Appeals' judgment
affirming the trial court's joinder of charges against him
arising from allegations of criminal conduct occurring on June
16 and June 18, 2011. Because this case will be reversed and
remanded and Gardner's convictions will be vacated, it is
unnecessary for this Court to address whether the trial court
erred by joining the separate offenses for trial. However, if
the Commonwealth proceeds with prosecution following remand,
it will have the burden of moving for joinder again and the
defendant will have the opportunity to oppose the motion.
As a general rule, evidence of propensity to commit a
crime is inadmissible. Va. R. Evid. 2:404(b) ("Evidence of
other crimes, wrongs, or acts is generally not admissible to
prove the character trait of a person in order to show that
the person acted in conformity therewith."). However, under
Rule 3A:10(c), a trial court may order the defendant to be
tried in a single trial for more than one offense if "justice
does not require separate trials and (i) the offenses meet the
requirements of Rule 3A:6(b) or (ii) the accused and the
15
Commonwealth's attorney consent thereto." Scott v.
Commonwealth, 274 Va. 636, 644, 651 S.E.2d 630, 634 (2007).
See also Commonwealth v. Smith, 263 Va. 13, 16, 557 S.E.2d
223, 225 (2002); Satcher v. Commonwealth, 244 Va. 220, 229,
421 S.E.2d 821, 827 (1992); Cheng v. Commonwealth, 240 Va. 26,
33, 393 S.E.2d 599, 603 (1990). Under Rule 3A:6(b), two or
more offenses may be joined "if the offenses are based on the
same act or transaction, or on two or more acts or
transactions that are connected or constitute parts of a
common scheme or plan."
Upon remand, if the Commonwealth seeks joinder again, the
trial court must carefully reconsider the standards we have
articulated for joinder of separate offenses.
JUSTICE McCLANAHAN, dissenting.
I disagree with the majority's conclusion that the circuit
court abused its discretion in excluding Gardner's proffered
character testimony of Laurie Ombrembt and Katherine Allan.
Furthermore, for the reasons stated by the Court of Appeals in
denying Gardner's petition for appeal, I do not believe the
circuit court abused its discretion in reaching its other
rulings challenged in this appeal. I would thus affirm the
judgment of the circuit court.
16
Following Ombrembt's testimony regarding Gardner's
reputation for truthfulness, his counsel asked Ombrembt about
Gardner's reputation for being "a good caretaker of children."
The circuit court sustained the Commonwealth's objection to the
question on the ground that no foundation had been established
for whether such reputation was for the period before or after
Gardner's alleged crimes, as the latter would be inadmissible.
Gardner's counsel then proffered Ombrembt's testimony in
response to this question regarding Gardner's reputation for
being a good caretaker of children, which clarified that the
response would cover the period leading up to Gardner's alleged
crimes. Gardner's counsel subsequently offered this proffer as
Allan's answer to the same question regarding Gardner's
reputation for child care.
By proffering this testimony, Gardner preserved the right
to challenge its exclusion on appeal, and the proffer is now
before us for review. See Va. R. Evid. 2:103(a)(2); Holles v.
Sunrise Terrace, Inc., 257 Va. 131, 135, 509 S.E.2d 494, 497
(1999); Owens v. Commonwealth, 147 Va. 624, 630, 136 S.E. 765,
767 (1927). The proffered testimony contained no statement that
either Ombrembt or Allan was aware of Gardner's reputation in
the community for a trait regarding child care, which was a
threshold requirement for its admission under well-settled
principles. I would, therefore, hold that the proffer was
17
legally deficient for reputation evidence – despite the
clarification regarding the timing issue.
A character witness in a criminal case "must be aware of
the [accused's] reputation in the community before [she] may
testify [regarding the accused's] reputation for a particular
characteristic." Jackson v. Commonwealth, 266 Va. 423, 440, 587
S.E.2d 532, 544 (2003). As a corollary, the testimony is
confined to "the opinion that the people of the community have
of [the accused]." Zirkle v. Commonwealth, 189 Va. 862, 871, 55
S.E.2d 24, 29 (1949). The long-established rationale for this
common law rule of evidence, which presents a significant
exception to the hearsay rule, is as follows: "reputation is the
aggregate voice of a community, offered to prove its corporate
or collective opinion, as the basis for inferences that the
person is a particular sort of person, hence that he probably
behaved a certain way. It is the very fact that the witness
reports the voice of the community that is thought to be the
great strength of such proof." Christopher B. Mueller & Laird
C. Kirkpatrick, 2 Federal Evidence § 4:42 (4th ed. 2013) (citing
Badger v. Badger, 88 N.Y. 546, 552 (N.Y. 1882)and Michelson v.
United States, 335 U.S. 469, 477 (1948)).
"Reputation," in short, "is not what a few persons say or
may think about the accused, it is what the community generally
believes." Moore v. United States, 123 F.2d 207, 210 (5th Cir.
18
1941) (citations omitted). In laying a foundation for the
admission of reputation evidence, the proponent must therefore
"establish[] that the community from which the reputation
testimony is drawn is sufficiently broad to provide the witness
with adequate knowledge to give a reliable assessment."
Morrison v. State, 818 So. 2d 432, 449 (Fla. 2002) (citation
omitted); see State v. Denny, 240 S.E.2d 437, 439 (N.C. 1978)
("[D]efendant's character is proved by testimony concerning his
general reputation, held by an appreciable group of people who
have had adequate basis upon which to form their opinion."
(emphasis in original) (citation and internal quotation marks
omitted)); Commonwealth v. La Pierre, 408 N.E.2d 883, 883-84
(Mass. App. Ct. 1980) (explaining that "the trial judge has
discretion to exclude [reputation] evidence if he determines
that it is based on the opinions of too limited a group,"
because "[i]t is only where the sources are sufficiently
numerous and general that they are viewed as trustworthy"
(citation omitted)). Thus, for example, in State v. Tucker, 968
A.2d 543, 548-49 (Me. 2009), the Supreme Judicial Court of Maine
held that reputation testimony was properly excluded because it
was based on reports from only eight people in a single
apartment community.
Here, the proffered testimony contained an ambiguous
reference to Ombrembt's "knowledge of . . . people's involvement
19
with Mr. Gardner," followed by the statement that "they have
expressed that they allow and [she] would allow her kids to be
with him, [and] be supervised with him." (Emphasis added.)
Ombrembt would then purportedly state that "they have no
evidence, no indication, of any sort of bad conduct, sexual
conduct, with minor children." (Id.) Ombrembt's reference to
"people" involved with Gardner, who purportedly expressed an
opinion about him, could have been any number of individuals
(even as few as two) having any number of disparate connections
to him. There was simply no proffer that Ombrembt knew of
Gardner's reputation for child care from the collective judgment
of any particular community of appreciable size and definition
such as to make the community judgment probative, as required
for the admission of reputation evidence. 1
Even if we assume by the reference to "people" that
Ombrembt was referring to the same individuals upon whom she
1
The proffer, of course, cannot reasonably be read in the
alternative as presenting Ombrembt's knowledge of Gardner's
reputation among everyone with whom he was involved in all of
his various social, commercial and professional activities and
associations, which would be incredible on its face. See
Nobrega v. Commonwealth, 271 Va. 508, 518, 628 S.E.2d 922, 927
(2006) (the trial court may reject, as a matter of law,
testimony determined to be "'inherently incredible'" (quoting
Walker v. Commonwealth, 258 Va. 54, 70-71, 515 S.E.2d 565, 575
(1999)); Barker v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d
729, 732 (1985) ("'[W]e are not required to believe that which
we know to be inherently incredible or contrary to human
experience.'" (quoting Willis v. Commonwealth, 218 Va. 560, 564,
238 S.E.2d 811, 813 (1977)).
20
based her testimony regarding Gardner's reputation for
truthfulness, the proffer would still be deficient. There,
Ombrembt simply identified two certain couples who lived nearby,
and then made reference to "the neighbors around that [she]
know[s] well" - whoever that might have been in addition to the
two named couples, if she was in fact referring to anyone else.
The opinion of a character witness's select group of individuals
with whom she is best acquainted does not represent the
collective judgment of a cognizable community for purposes of
presenting reputation evidence. 2 See Ginger v. Commonwealth, 137
Va. 811, 814, 816, 120 S.E. 151, 152, 153 (1923) (reputation
testimony about a person's dangerousness was "clearly
inadmissible" when based on conversation with two law
enforcement officers rather than "general reputation" (emphasis
in original)).
After hearing the proffered testimony and the argument of
counsel about whether it constituted admissible reputation
evidence, the circuit court did not change its ruling to exclude
it. For the reasons stated above, I would hold that the circuit
court did not abuse its discretion in finding an insufficient
basis for the admission of the purported reputation evidence, as
it was deficient as a matter of law in failing to identify a
2
Allen also testified about Gardner's purported reputation
for truthfulness, but, like Ombrembt, Allen failed to identify a
cognizable community from which to report that particular trait.
21
cognizable community. Therefore, I would affirm Gardner's
convictions.
22