Brown v. Com.

• Decision Date: 08 July 1997
• Docket Number: No. 0753-95-2,0753-95-2
• Citation: 487 S.E.2d 248,25 Va.App. 171
• Court: Virginia Court of Appeals
• Parties: Floyd Keith BROWN v. COMMONWEALTH of Virginia. Record

Page 248

487 S.E.2d 248

25 Va.App. 171

Floyd Keith BROWN v. COMMONWEALTH of Virginia.

Record No. 0753-95-2.

Court of Appeals of Virginia Richmond.

July 8, 1997.

Bruce M. Steen (McGuire, Woods, Battle & Boothe, L.L.P., on brief), Charlottesville, for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BENTON, COLEMAN, WILLIS, ELDER, BRAY, FITZPATRICK, ANNUNZIATA and OVERTON, JJ.

UPON A REHEARING EN BANC

COLEMAN, Judge.

Floyd Keith Brown was convicted by a jury of statutory burglary, rape, and two counts of forcible sodomy. A panel of this Court reversed the convictions on the ground that the trial court erroneously excluded as hearsay two statements offered by the defense. See Brown v. Commonwealth, 23 Va.App. 225, 475 S.E.2d 836 (1996). We granted the Commonwealth a rehearing en banc.

Upon rehearing, we uphold the trial court's ruling that the defendant's out-of-court question to a police officer was inadmissible hearsay. However, we hold that an out-of-court conversation which allegedly occurred between the victim and defendant was not hearsay because it was offered to prove that the victim and defendant knew one another or had previously met; it was not offered to prove the truth or falsity of the assertions contained therein. Thus, we hold that the trial court erred by refusing to admit testimony that a witness overheard the conversation between the victim and the defendant. However, we hold that the error in excluding the conversation was harmless because the evidence of guilt was overwhelming. Accordingly, we affirm the defendant's convictions.

I. BACKGROUND

The victim testified that on June 25, 1994, she went to bed around 12:30 a.m. or 1:00 a.m. Some time later, she awoke and found the defendant, who was naked, standing over her bed. The victim screamed and tried to get away. The defendant grabbed the victim by the neck, hit her in the face, and choked her. He then threw her across the bed and raped her, forcing her to engage in both oral and anal sodomy. After forcing the victim to have intercourse, the defendant fell asleep and the victim fled from the apartment.

A passing motorist saw the victim "running down the road naked." The motorist testified that the victim was "bloody" and "scared to death." The victim told the motorist that a man had broken into her apartment and raped her. The motorist called the police. When the police arrived, they found the victim in the back seat of the motorist's car wrapped in a sheet, which the motorist had provided. Officer R.L. Shaner testified that the victim's right eye was "swollen and bruised."

The police went to the victim's apartment and arrested the defendant, who was asleep in the victim's bed. The defendant told the police that he had consensual intercourse with the victim. He said that he had gone to the victim's apartment because he had obtained marijuana for her. He told the officers that he and the victim did not consume all of the marijuana. The police found no marijuana in the apartment, and the victim's blood tested negative for marijuana. The defendant's blood tested positive for cocaine but showed no trace of marijuana. A forensic expert testified that marijuana would be present in a person's blood for at least twenty-four hours after the last use.

When the police searched the victim's apartment, they found a chair placed against the outside of the victim's kitchen window. The kitchen window sill was bent, and the screen was damaged. The defendant's palm prints were found on the kitchen sink facing inward from the kitchen window. The defendant's shoes were on the kitchen sink, and dirt on his shoes appeared to match the dirt in the victim's backyard. Furniture in the apartment had been overturned. Blood was found in eight different areas on the bed sheet and on the victim's t-shirt.

A doctor examined the victim that night and stated that the victim was "clearly nervous and jittery." The victim's right eye was bleeding and swollen shut, and she had several red marks on her forehead. In addition, she had several scratches on her right front thigh, several red marks on her throat, and dried blood on her head, hair, and perineum. Her nose was bloody, and blood was found under all of her fingernails. Her perineum was slightly swollen and red.

In response to the victim's claim that she had bitten her attacker's thumb, the police examined the defendant's thumb when he was arrested and found bite marks. The bite marks were open and raw and appeared to be of recent origin.

At trial, the defendant testified that he had known the victim for around two and one-half months before the incident, that she had admitted him to the apartment that night, and that they had consensual sexual intercourse. He denied using any force or violence on the victim.

II. OFFICER BERRYMAN'S TESTIMONY

At trial, Officer Matthew Berryman testified that, at the police station, the defendant "asked me twice if Peggy [the victim] knew he was here." The prosecutor objected on the ground that the statement was hearsay. The trial judge sustained the objection and ruled that this testimony was inadmissible hearsay.

Hearsay is "[a] statement other than one made by the declarant while testifying at trial--offered in evidence to prove the truth of the matter asserted." Black's Law Dictionary 649 (5th ed.1979).

Whether an extrajudicial statement is hearsay depends upon the purpose for which it is offered and received into evidence. If the statement is received to prove the truth [or falsity] of its content, then it is hearsay and, in order to be admissible, must come within one of the many established exceptions to the general prohibition against admitting hearsay.

Hanson v. Commonwealth, 14 Va.App. 173, 187, 416 S.E.2d 14, 22 (1992).

"Part of the difficulty in 'not-for-truth' situations is due to the fact that often such evidence will have a dual nature; the declaration may indeed be relevant on some matter unrelated to the truth of the content of the statement, and yet the content of the statement may go to the issues of the case as well. See, e.g., Donahue v. Commonwealth, [225 Va. 145, 300 S.E.2d 768 (1983) ]. This is perhaps the situation which creates the greatest dilemma for the courts. In that regard, however, it should be remembered that it is a time-honored principle of evidence law that, in general, if evidence is admissible for any purpose, it is admissible."

Jenkins v. Commonwealth, 22 Va.App. 508, 521, 471 S.E.2d 785, 791 (1996) (en banc ) (quoting 2 Charles E. Friend, The Law of Evidence in Virginia § 18-3, at 95-96 (4th ed.1993) (footnote omitted)).

The initial issue in this case is whether an extrajudicial statement that is in the form of a question, such as "Does Peggy know I am here?", can be an assertion or declaration of fact that can constitute hearsay. In order for a statement to be hearsay it must assert the truth or falsity of a fact. In many instances, questions by an out-of-court declarant contain no assertion; they simply seek answers. See Carlton v. State, 111 Md.App. 436, 681 A.2d 1181, 1184, cert. denied, 344 Md. 328, 686 A.2d 634 (1996). However, a question can include an implied assertion. "For example, the question, 'Do you need change?' impliedly asserts that the questioner has change. The question, 'Why did you stab me, Brutus?' impliedly asserts that the questioner was stabbed by Brutus." Id. As these questions demonstrate, the extent to which the question may or may not contain an implied assertion depends on the nature of the question and the circumstances. But see Bolen v. Paragon Plastics, Inc., 754 F.Supp. 221, 225 (D.Mass.1990) (holding that, under the Federal Rules of Evidence, an inquiry cannot be an assertion); United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir.1990) (same); State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965, 971 (holding that the question posed by the accused in this case was not an assertion because it was incapable of being proved either true or false), cert. denied, --- U.S. ----, 116 S.Ct. 575, 133 L.Ed.2d 498 (1995); Washington v. State, 87 Md.App. 132, 589 A.2d 493, 495 (1991) (holding that the question posed by the accused was not offered as an assertion of truth).

The Virginia Supreme Court recognized in Stevenson v. Commonwealth, 218 Va. 462, 237 S.E.2d 779 (1977), that an assertion can be implied, in that case from a declarant's conduct, and that such an implied assertion is inadmissible as hearsay if offered to prove the truth of the assertion implied from the conduct. In Stevenson, the defendant was suspected of committing a homicide. A police officer came to the defendant's home and asked his wife if the defendant had changed clothes the day of the homicide. In response to the officer's question, the defendant's wife retrieved a shirt and gave it to the officer. Id. at 464, 237 S.E.2d at 781. The Supreme Court held that "the conduct of [the defendant's wife] was intended as a nonverbal assertion for the purpose of showing that the shirt not only belonged to [the defendant] but was in fact worn by him on the day of the crime" and was, therefore, inadmissible hearsay evidence. Id. at 465, 237 S.E.2d at 781-82.

In this case, when the defendant asked "Does Peggy know I am here?", he was necessarily implying or asserting, "I know Peggy personally." See, e.g., Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (finding that a witness' statement included an implicit identification of the accused); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (finding that a conspirator's statement implied petitioner's guilt); United States v. Reynolds, 715 F.2d 99 (3d Cir.1983) (recognizing the validity of implied assertions and holding that codefendant's statement, "I didn't tell them anything about you," was relevant only to prove the accused's guilt and, therefore, inadmissible...