Commonwealth v. Swann (ORDER) , 290 Va. 194 ( 2015 )

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 28th day of
August, 2015.
Commonwealth of Virginia, Appellant,
against Record No. 141387
Court of Appeals No. 0562-13-4
Storme Gary Swann, a/k/a
Henry Gary Simpson, a/k/a
Gary Simpson, Appellee.
Upon an appeal from a
judgment rendered by the Court
of Appeals of Virginia.
A jury convicted Storme Gary Swann of abduction, robbery and
statutory burglary. The Court of Appeals reversed the convictions
based on Swann's claim that his rights under the Confrontation
Clause of the Sixth Amendment to the United States Constitution
were violated. On the Commonwealth's appeal, we affirm the
judgment of the Court of Appeals in reversing Swann's convictions,
but on narrower, non-constitutional grounds.
I. RELEVANT FACTS AND PROCEEDINGS
The two female victims in this case were in a hotel room in
Arlington County when an unknown man forced his way into their
room, tied them up, and robbed them of cash and other personal
property. In reviewing hotel surveillance video from the night of
the robbery as part of his investigation, Detective Don Fortunato
of the Arlington County Police Department observed a man in the
video who appeared to match the victims' description of the
individual who robbed them. When the victims were shown the video,
one of them identified the individual on the video as the
perpetrator, while the other victim did not believe it was him.
The police department then issued a news release to various
regional media outlets that described the robbery, provided still
photographs of the man shown in the hotel surveillance video, and
asked anyone with information about the robbery or the identity of
the suspect to call Detective Fortunato. Shortly thereafter,
Fortunato received an anonymous tip from Crime Solvers identifying
Swann as the possible perpetrator of the crime. 1 There is no
indication in the record that the police ever learned the identity
of this anonymous caller.
Based on the anonymous tip implicating Swann, along with other
information the police collected in its investigation, Swann was
arrested and charged with two counts of abduction (Code § 18.2-48),
two counts of robbery (Code § 18.2-58), and statutory burglary
(Code § 18.2-90). At a pretrial hearing, the parties stipulated
that Fortunato would not testify at Swann's jury trial to the
specific content of the anonymous tip implicating Swann, but would
state only that he received a tip through Crime Solvers that
"point[ed] to" Swann or "indicat[ed]" that Swann was the
perpetrator.
1
As Fortunato explained at trial, Crime Solvers is an
organization independent from, but has a liaison with, the police
department. Crime Solvers is designed to receive information from
the general public regarding criminal activity and forward the
information to the police investigator or officer who is requesting
it. Further, Crime Solvers allows individuals who call the
organization with information for the police to remain anonymous.
2
During Fortunato's direct examination at trial, the
Commonwealth asked him: "Did you receive information from Crime
Solvers?" Fortunato answered "[y]es." The Commonwealth then asked
Fortunato: "Thereafter, did you investigate someone named Storme
Swann?" Fortunato again answered "[y]es." The Commonwealth did
not ask Fortunato any further questions about this tip during the
remainder of direct examination.
On cross-examination, defense counsel inquired about two other
tips Fortunato received during his investigation. Specifically,
defense counsel asked: "You got a phone call from someone saying
that he read the paper and he thinks the [subject hotel] incident
was Fred Harold?" Fortunato acknowledged that he did receive such
a tip, but explained how he subsequently determined that this
individual was at an area hospital at the time in question.
Defense counsel also asked whether Fortunato had "received
information about a similar crime in Fairfax" committed by a
perpetrator who was still at large when the instant robbery
occurred. Fortunato responded affirmatively.
On redirect, the Commonwealth requested a sidebar and argued
that defense counsel had "opened the door" to questions regarding
the content of the tip implicating Swann. The trial court agreed
and permitted Fortunato, over defense counsel's objection, to
testify that "[t]he caller had a good deal of information about Mr.
Swann." In addition, the court allowed Fortunato to testify that
"[t]he caller stated that Mr. Swann told her that he had to lay low
because of something that he did at an unknown hotel."
The jury convicted Swann on all charges and the trial court
imposed the sentences fixed by the jury. Swann appealed his
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convictions to the Court of Appeals. Among other asserted errors,
Swann argued the trial court erred by allowing Fortunato, on
redirect examination, to testify as to the specific content of the
anonymous tip that implicated Swann. That testimony, Swann
contended, was admitted in violation of his Sixth Amendment
Confrontation Clause rights.
A three judge panel of the Court of Appeals agreed with Swann
and then held that the error was not harmless. Swann v.
Commonwealth, 2014 Va. App. LEXIS 282, at *13-21 (August 19, 2014)
(unpublished). Specifically, applying the constitutional harmless
error standard, the Court of Appeals determined there was "'a
reasonable possibility that the [erroneous admission of the
anonymous tip] might have contributed to [Swann's] conviction[s],'"
and thus "conclude[d] that the Commonwealth's violation of [his]
Confrontation Clause right was not harmless beyond a reasonable
doubt." Id. at *20 (quoting Lilly v. Commonwealth, 258 Va. 548,
551, 523 S.E.2d 208, 209 (1999)). The Court of Appeals therefore
reversed Swann's convictions and remanded the case for retrial if
the Commonwealth be so advised. The Commonwealth timely appealed
this ruling.
II. ANALYSIS
A. Non-constitutional Adjudication of Appeal
The doctrine of judicial restraint dictates that we decide
cases "'on the best and narrowest grounds available.'" McGhee v.
Commonwealth, 280 Va. 620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010)
(quoting Air Courier Conference v. American Postal Workers Union,
498 U.S. 517, 531 (1991) (Stevens, J., concurring)). A fundamental
and longstanding precept of this doctrine is that "unnecessary
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adjudication of a constitutional issue" should be avoided. Bell v.
Commonwealth, 264 Va. 172, 203, 563 S.E.2d 695, 715 (2002); see
Christopher v. Harbury, 536 U.S. 403, 417 (2002) (noting the
"obligation of the Judicial Branch to avoid deciding constitutional
issues needlessly"); Siler v. Louisville & Nashville R.R. Co., 213
U.S. 175, 193 (1909) (explaining that "[w]here a case in this court
can be decided without reference to questions arising under the
Federal Constitution, that course is usually pursued").
Accordingly, because we conclude that, under Virginia non-
constitutional evidentiary law, Detective Fortunato's disputed
testimony on redirect was inadmissible hearsay and the trial
court's error in admitting it was not harmless, we need not decide
whether admission of the testimony violated Swann's rights under
the Sixth Amendment.
B. Inadmissible Hearsay
In a non-constitutional context, we review a trial court's
rulings on whether to admit or exclude evidence under an abuse of
discretion standard. Lawlor v. Commonwealth, 285 Va. 187, 229, 738
S.E.2d 847, 871 (2013); Thomas v. Commonwealth, 279 Va. 131, 168,
688 S.E.2d 220, 240 (2010). "'Only when reasonable jurists could
not differ can we say an abuse of discretion has occurred.'"
Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644
(2009) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, 607
S.E.2d 738, 743 (2005)). Under this standard, we hold that the
trial court abused its discretion in admitting Detective
Fortunato's disputed testimony, as it plainly constituted
inadmissible hearsay.
5
The common law definition of hearsay evidence is "testimony in
court . . . of a statement made out of court, the statement being
offered as an assertion to show the truth of matters asserted
therein, and thus resting for its value upon the credibility of the
out-of-court asserter." Jenkins v. Commonwealth, 254 Va. 333, 338,
492 S.E.2d 131, 134 (1997) (citations and internal quotation marks
omitted); see also Lawrence v. Commonwealth, 279 Va. 490, 496, 689
S.E.2d 748, 752 (2010) (hearsay "includes testimony given by a
witness who relates what others have told him" (citation omitted));
Va. R. Evid. 2:801 (defining hearsay).
Detective Fortunato's disputed redirect testimony was not just
hearsay, but "double hearsay," because Fortunato testified as to
the content of what the anonymous caller to Crime Solvers claimed
Swann had told her – i.e., that "[t]he caller stated that Mr. Swann
told her that he had to lay low because of something that he did at
an unknown hotel." See Service Steel Erectors Co. v. International
Union of Operating Eng'rs, 219 Va. 227, 236, 247 S.E.2d 370, 376
(1978) (upholding exclusion of proffered testimony consisting of
"double hearsay"). As this Court has explained, in order for
"double hearsay . . . to be admissible, 'both the primary hearsay
declaration and each hearsay declaration included within it must
conform to a recognized exception to the hearsay rule.'" Riner v.
Commonwealth, 268 Va. 296, 324, 601 S.E.2d 555, 571 (2004) (quoting
with approval West v. Commonwealth, 12 Va. App. 906, 910, 407
S.E.2d 22, 24 (1991)). See also Va. R. Evid. 2:805 (addressing
"[h]earsay within hearsay").
The Commonwealth argues on brief that Fortunato's testimony
reciting the content of the anonymous tip implicating Swann was not
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offered for the truth of the matter asserted. Rather, the
Commonwealth contends, the testimony was appropriately offered
merely to explain why Fortunato focused the investigation on Swann.
To be sure, the prosecution may introduce evidence of a tip
received by the police for the purpose of showing the reason for
the police officers' conduct in pursuing a particular individual as
part of a criminal investigation. That is, such evidence may be
offered, within limits, to establish the propriety of the
investigation and not for the truth of the tipster's statement.
Weeks v. Commonwealth, 248 Va. 460, 477, 450 S.E.2d 379, 390
(1994); Upchurch v. Commonwealth, 220 Va. 408, 410, 258 S.E.2d 506,
507-08 (1979). When that is the case, the evidence does not
violate the hearsay rule.
The Commonwealth, however, is not in a position to advance
this argument on appeal, which its counsel tacitly acknowledged to
this Court during oral argument, in light of the prosecution's
closing argument in this case. During closing argument, counsel
for the Commonwealth argued to the jury: "Finally, and most
importantly, we have two other pieces of evidence. First,
Detective Fortunato told you that the tip he received said that the
defendant had to lay low because of something that he did at an
unknown hotel. That's a statement of the defendant. You can
consider that and you should consider that." This argument belies
the Commonwealth's contention on brief that the tip was not offered
for its truth, as the prosecution told the jury that Swann, in
fact, made this incriminating statement and then indicated that the
jury should consider the statement as evidence of Swann's guilt.
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Arguing in the alternative, the Commonwealth contends that,
even if Fortunato's testimony about the content of the anonymous
tip implicating Swann was otherwise inadmissible hearsay, Swann
"opened the door" to such testimony by his cross-examination of
Fortunato.
Consistent with the above-stated standard of review, "[o]nce
a party has 'opened the door' to inquiry into a subject, the
permissible scope of examination on the subject by the opposing
party is 'a matter for the exercise of discretion by the trial
court,' and we will not disturb the court's action on appeal unless
it plainly appears that the court abused its discretion." Savino
v. Commonwealth, 239 Va. 534, 545, 391 S.E.2d 276, 282 (1990)
(quoting Bunch v. Commonwealth, 225 Va. 423, 438, 304 S.E.2d 271,
279-80 (1983)). See Linwood Earl Briley v. Commonwealth, 221 Va.
532, 540, 273 S.E.2d 48, 53 (1980) ("Cross-examination on a part of
a transaction enables the opposing party to elicit evidence on
redirect examination of the whole transaction at least to the
extent that it relates to the same subject." (quoting United States
v. Barrentine, 591 F.2d 1069, 1081 (5th Cir. 1979))).
The Commonwealth argues that during the cross-examination of
Fortunato the defense "attack[ed] the reliability and diligence of
the police investigation" in this case by questioning Fortunato
about the tips he received regarding two other potential suspects.
This exchange, according to the Commonwealth, opened the door to
Fortunato's redirect testimony concerning the tip about Swann,
which was "aimed at showing the investigation was not deficient."
The Commonwealth thus concludes that the trial court did not abuse
8
its discretion in permitting the Commonwealth to offer this limited
evidence.
The Commonwealth's argument falls short, however, because
defense counsel's cross-examination of Fortunato did not open the
door as wide as the Commonwealth contends. During this cross-
examination defense counsel asked only limited questions, and
Fortunato provided very limited responses, about the tips
concerning two other potential suspects – namely, one Fred Harold
and some unnamed perpetrator of a similar crime in Fairfax who was
still at large when the instant crime occurred. Fortunato merely
explained that he determined that Harold was at an area hospital at
the time in question and acknowledged that he had "received
information" about the similar crime in Fairfax. We simply cannot
say, under a principled application of Virginia's evidentiary and
trial procedure doctrines, that such testimony opened the door to
the admission of the double hearsay contained in Fortunato's
subsequent recitation of the actual content of the anonymous tip
implicating Swann during redirect. In short, the double hearsay on
redirect exceeded the scope of cross-examination. The trial court
thus abused its discretion in admitting this hearsay into evidence
over the defense's well-founded objection.
C. Harmless Error
Finally, we address the issue of harmless error. In
concluding that the trial court's admission of Fortunato's disputed
testimony violated Swann's Confrontation Clause rights and
reversing his convictions, the Court of Appeals determined that the
violation was not harmless error under the applicable
constitutional standard. Here, the Commonwealth limits its
9
challenge to the Court of Appeals' threshold determination as to
the testimony's admissibility. Nevertheless, Code § 8.01-678 makes
"harmless-error review required in all cases." Ferguson v.
Commonwealth, 240 Va. ix, ix, 396 S.E.2d 675, 675 (1990) (emphasis
in original); see Walker v. Commonwealth, 144 Va. 648, 652, 131
S.E. 230, 231 (1926) (holding that the harmless error statute "puts
a limitation on the powers of this court to reverse the judgment of
the trial court — a limitation which we must consider on every
application for an appeal and on the hearing of every case
submitted to our judgment"). 2
We have thus conducted a harmless error review under the non-
constitutional standard, in keeping with our more narrow review of
this appeal, and conclude that the erroneous admission of
Fortunato's double hearsay testimony was not harmless. Under this
standard, a non-constitutional error in a criminal case is harmless
"'[i]f, when all is said and done, . . . the error did not
influence the jury, or had but slight effect.'" Anderson v.
Commonwealth, 282 Va. 457, 467, 717 S.E.2d 623, 628 (2011) (quoting
Rose v. Commonwealth, 270 Va. 3, 12, 613 S.E.2d 454, 458 (2005)).
However, if we "'cannot say, with fair assurance, after pondering
all that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
2
See also United States v. Hasting, 461 U.S. 499, 509 (1983)
("[I]t is the duty of a reviewing court to consider the trial
record as a whole and to ignore errors that are harmless" lest they
"retreat from their responsibility, becoming instead impregnable
citadels of technicality." (citations, alteration, and internal
quotation marks omitted)).
10
error," then "the conviction cannot stand.'" Id. (quoting Rose,
270 Va. at 12, 613 S.E.2d at 458-59).
Upon our review of the entire record, we cannot say with fair
assurance that the jury was not substantially influenced by the
erroneous admission into evidence of the substance of the tip
implicating Swann through the testimony of Detective Fortunato -
that is, testimony offered for the truth of the anonymous tipster's
assertion that Swann said he had to "lay low because of something
he did at an unknown hotel." Indeed, in closing argument, the
Commonwealth made clear the importance of the content of the tip by
arguing that it was one of the prosecution's "most important[]"
pieces of evidence for proving Swann's guilt. Thus, we are
compelled to conclude that the error in admitting this evidence was
not harmless.
III. CONCLUSION
The Court of Appeals decided this case on the basis that the
admission into evidence of Detective Fortunato's disputed testimony
violated Swann's Sixth Amendment Confrontation Clause rights. We
need not resolve that issue in light of our limited holding that
the testimony constituted inadmissible hearsay and its admission
was not harmless under non-constitutional principles. Thus, we
vacate that portion of the judgment of the Court of Appeals holding
that Swann's constitutional rights were violated. Further, based
on our limited holding in this case, we affirm that part of the
Court of Appeals' judgment reversing Swann's convictions and
remanding the case for retrial if the Commonwealth be so advised.
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This order shall be certified to the Court of Appeals of
Virginia and the Circuit Court of Arlington County and shall be
published in the Virginia Reports.
A Copy,
Teste:
Patricia L. Harrington, Clerk
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