Kenneth Oliver Washington v. Commonwealth of VA ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
KENNETH OLIVER WASHINGTON
MEMORANDUM OPINION * BY
v. Record No. 2157-99-1 JUDGE JAMES W. BENTON, JR.
JANUARY 9, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Edward L. Hubbard, Judge
Charles E. Haden for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted Kenneth Oliver Washington of assault and
battery of a police officer. Washington contends the trial judge
should have admitted a tape recording of the incident into
evidence. We agree; therefore, we reverse the conviction and
remand for a new trial.
I.
A grand jury indicted Washington on charges of assault and
battery of a police officer, see Code § 18.2-57(C), and attempting
to impede a police officer in the performance of his duties, see
Code § 18.2-460(B). The evidence at trial proved that on the
evening of January 13, 1998, six City of Newport News police
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
officers executed search warrants for drugs, which identified the
places to be searched as the person of Mickey Clayborn and the
residence of Washington's sister. Officer J.W. Holloway, who
knocked on the door of the residence, wore "a blue and green
two-tone windbreaker-type jacket, a green Philadelphia Eagles
ballcap and pair of khaki corduroy pants." The other officers
wore garb bearing the word "Police" in various places and a gold
badge. After Holloway "was notified that someone was coming to
the front door," the other officers repositioned themselves around
a bush behind Officer Holloway.
When Washington opened the door, Holloway said "Hey, Mickey,
what's up?" As the door was opening, Holloway entered the
residence, announced "Police, search warrant," and instructed
Washington to "Let me see your hands, show me your hands." He
testified that as he spoke these words he put his hand on
Washington's chest, forced Washington back, and drew his firearm.
The other officers ran into the room behind Holloway
announcing, "Police, search warrant." Another officer testified
that "[o]nce the door was opened, [the officers made] a dynamic
entry . . . to get into the residence and saturate the residence
with as many detectives as possible." Their objective was to
enter quickly and secure the premises.
Holloway and other prosecution witnesses testified that a
scuffle ensued after Washington, whom they believed to be Mickey
Clayborn, grabbed Holloway's gun. One officer testified that two
- 2 -
other officers shouted, "Drop the gun, stop fighting, police, drop
the gun," repeatedly during the struggle. The struggle continued
from one room down a hallway to another before the police knocked
the gun away from Washington and subdued him in the kitchen.
In his defense, Washington testified he was visiting his
sister at 6:00 p.m., the time of the search. Just as he completed
dialing the telephone number of a friend from the kitchen, he
heard a noise at the door that "wasn't just a knock, it was a
bam." He put the telephone down and responded to the door. He
testified that when he opened the door, a person dressed in
civilian clothes rushed into the dark living room followed by
other men. He said he did not know who they were and did not
understand what they were saying because "[t]here was a whole lot
of noise." The persons rushing into the living room never
identified themselves as police and pointed guns at his head. He
testified that he grabbed the man's wrist to defend himself
because he was scared. He denied grabbing the gun and disputed
the officers' testimony about what was said. He testified that he
ceased resisting as soon as possible after realizing the intruders
were police officers.
During Washington's testimony, defense counsel sought to
introduce a tape recording of the incident. Washington
testified that the answering machine of the individual he was
calling when the police arrived recorded the incident. He
sought to introduce a copy of that recording. Washington's
- 3 -
counsel represented to the trial judge that he retained the
original tape recording.
The trial judge refused to allow the recording into
evidence ruling that defense counsel failed to lay a proper
foundation for it. The judge stated, "I don't have any evidence
to indicate anything reliable about the tape, and then
[Washington] records that tape off her machine, off the
original." The trial judge stated a concern that no expert or
operator could testify as to the range and power of the
recording device. Therefore, he refused to allow the admission
of the recording.
At the conclusion of the evidence, the jury acquitted
Washington of impeding the officers in the performance of their
duties and convicted Washington of assault and battery of a
police officer. The jury recommended the mandatory minimum
confinement of six months.
II.
Washington appeals the judge's refusal to allow the
recording in evidence. The Commonwealth argues that this appeal
must fail because Washington did not make a proffer of the
evidence contained in the audio tape. Washington concedes in
his brief that his "trial counsel refrained from . . . formally
making a proffer of the transcript [of the tape recording] in
open court because he feared antagonizing the judge more than he
already had." He argues, however, that the record contains
- 4 -
evidence sufficient to put the trial judge on notice as to the
contents of the recording.
"[W]hen testimony is rejected before it is delivered, an
appellate court has no basis for adjudication unless the record
reflects a proper proffer." Whittaker v. Commonwealth, 217 Va.
966, 968, 234 S.E.2d 79, 81 (1977). The requirement for a
proffer "is to assure that the record will be complete." Lowery
v. Commonwealth, 9 Va. App. 304, 308, 387 S.E.2d 508, 510
(1990). A proper proffer takes one of three forms: (1) a
unilateral avowal of counsel, if unchallenged; (2) a mutual
stipulation of the parties; or (3) the taking of testimony of
the witness outside the presence of the jury. Id. at 307, 387
S.E.2d at 510.
In this case, Washington testified concerning the events
and statements during the officer's entry. He responded
affirmatively when asked if the "events" of the night had been
recorded. He testified that the audio tape in question recorded
those events. Thus, he implicitly asserted that the audio tape
supported his version of events to which he testified before and
after the proffer. The prosecutor never challenged this
assertion that the tape would support and illustrate
Washington's testimony; she merely challenged the foundation
that his attorney laid to have the tape admitted. In fact,
Washington's entire testimony about the events of that night
- 5 -
serves as a proffer for the audio tape that allegedly recorded
those events.
In Whittaker, the Supreme Court addressed whether a
criminal defense attorney had made a sufficient proffer when
seeking to elicit answers from a prosecution witness about
criminal sentences he had served. Defense counsel stated to the
judge what he thought the sentences were and that the witness
had received lenient treatment from the prosecution in exchange
for testimony. 217 Va. at 967, 234 S.E.2d at 80. In applying
the rules outlined above, the Court found that proffer
sufficient. Id. at 969, 234 S.E.2d at 81.
In Stewart v. Commonwealth, 10 Va. App. 563, 394 S.E.2d 509(1990), we addressed whether a defendant could question
witnesses in a murder trial about an unknown substance found at
a murder scene. The defendant sought to prove the victim was a
drug dealer in order to prove that other individuals may have
had motives for killing him. Id. at 567, 394 S.E.2d at 512.
Although we held that such questioning was inappropriate,
nevertheless, we ruled that "defense counsel made a sufficient
proffer of the testimony excluded by the trial court by stating
his unchallenged unilateral avowal that he expected the
testimony to show that controlled substances were discovered at
the crime scene which might implicate some other person as the
possible criminal agent." Id. at 568, 394 S.E.2d at 512.
- 6 -
In this case, the police testified as to the events.
Washington also testified as to his version of the same
incident. He and his counsel asserted to the trial judge that a
tape recording existed of the events. That was a sufficient
proffer of what the evidence would show. Furthermore, both the
trial judge and we know what is being considered in this case.
Washington and the officers testified about what was said in the
apartment. The recording was offered to demonstrate the events
about which Washington and the officers were testifying. If the
purpose of the proffer is to assure a complete record, then the
discussion between the parties and the trial judge in this case
fulfills that purpose and provides a complete record.
III.
The trial judge ruled it was necessary to have an expert
authenticate the recordings. The judge asked, "Do we have
anybody, an expert or something, indicating the range that thing
would pick up, the decibels it would pick up, what its range is
and the distance that that range would travel, anything like
that?" Later, he stated that he would not admit the tape
"unless I've got somebody here that would indicate to me what
the range of the tape was, not only the distance but the decibel
and that sort of thing, it's no good. For all I know it could
only pick up a foot and a half from the receiver, the voices. I
don't know if they’re on the other side of the room."
Washington contends that the trial judge erred in refusing to
- 7 -
admit the tape recording into evidence by applying the wrong
standard for the admission of such evidence.
In Virginia, the rules of admissibility are well
established.
A proper foundation must be laid for the
introduction of all evidence. The burden is
upon the party offering real evidence to
show with reasonable certainty that there
has been no alteration or substitution of
it. But, the burden is not so absolute that
one must eliminate all possibility of
tampering.
Horsley v. Commonwealth, 2 Va. App. 335, 338, 343 S.E.2d 389,
390 (1986) (citation omitted). Moreover, in the case of
evidence, such as a photograph, that records a scene or an
event, a witness may authenticate that evidence by stating that
it accurately depicts what he or she observed. See State Farm
Mut. Auto. Ins. Co. v. Futrell, 209 Va. 266, 271, 163 S.E.2d
181, 185 (1968).
In Witt v. Commonwealth, 15 Va. App. 215, 220, 422 S.E.2d
465, 469 (1992), we held that the prosecution had properly
authenticated audio tapes of conversations between the defendant
and a police informant. A prosecution witness testified that he
transferred some of the conversations from reel to reel tapes to
cassette tapes, that a typist transcribed the contents of all
the recordings and that he reviewed the typist's work to ensure
its accuracy. Id. Such testimony "sufficiently showed" that
the "tapes had not been altered or substituted." The informant,
- 8 -
who participated in the taped conversations, testified that the
tape recordings were accurate. Id. We required no technical
testimony about the range or power of the recording devices.
In this case, Washington testified in a manner similar to
that of the prosecution witness in Witt. He stated that his
friend's answering machine recorded the events of the evening
and that he made a recording of that tape, presumably because,
as in Witt, a new recording would be easier to play for the
jury. He testified that the recording captured the events of
the evening. His counsel also represented to the trial judge
that Washington had the original tape. Such testimony was
sufficient to ensure with reasonable certainty that the
recordings had not been altered or substituted. Therefore, the
trial judge erred when he rejected this recording as evidence.
IV.
The Commonwealth asserts that even if the trial judge erred
in excluding this evidence, the error is harmless. Because the
exclusion of evidence would be a nonconstitutional error, it is
harmless if it plainly appears from the record and the evidence
given at trial that the error did not affect the verdict. Code
§ 8.01-678; Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,
407 S.E.2d 910, 911 (1991) (en banc).
The Commonwealth asserts that the error is harmless because
the tape recording merely repeats what Washington said on the
stand and, therefore, is redundant. While it is true that the
- 9 -
evidence at issue was illustrative of Washington's testimony,
such a character does not render the evidence redundant. "Other
evidence of a disputed fact, standing alone, does not establish
that an error is harmless." Hooker v. Commonwealth, 14 Va. App.
454, 458, 418 S.E.2d 343, 345 (1992).
In this case, the jury's determination of the sufficiency
of proof involves the jury's assessment of the credibility of
the witnesses. See Waller v. Commonwealth, 22 Va. App. 53, 61,
467 S.E.2d 844, 848 (1996). The jury had to resolve differences
in testimony between the police officers and Washington. By
convicting Washington, the jury resolved those differences
against him. With the aid of the tape recordings, the jury
might well have found Washington more credible and returned a
verdict in his favor. Indeed, the jury apparently believed some
of Washington's testimony in acquitting him of the charge of
attempting to impede the officers in the performance of their
duties. Thus, we cannot say that this error was harmless. See
id.V.
For these reasons, we reverse the conviction and remand to
the trial court for further proceedings not inconsistent with
this opinion.
Reversed and remanded.
- 10 -