Cairns v. Com.

• Decision Date: 06 March 2001
• Docket Number: Record No. 2343-99-2.
• Citation: 35 Va. App. 1,542 S.E.2d 771
• Parties: Robert Bruce CAIRNS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

542 S.E.2d 771

35 Va. App. 1

Robert Bruce CAIRNS v. COMMONWEALTH of Virginia.

Record No. 2343-99-2.

Court of Appeals of Virginia, Richmond.

March 6, 2001.

Craig S. Cooley, Richmond, for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: WILLIS and ANNUNZIATA, JJ., and COLEMAN, Senior Judge.¹

ANNUNZIATA, Judge.

The appellant, Robert Bruce Cairns, was convicted following a bench trial in the Circuit Court of Chesterfield County of four counts of forcible sodomy, one count of rape, and one count of producing sexually explicit materials in violation of Code § 18.2-374.1. Cairns was sentenced to a total of 155 years imprisonment, with ninety-five years suspended On appeal, Cairns alleges the trial court erred in admitting his codefendant's statement against him in their joint trial because: (1) the admission of the statement violated the marital privilege under Code § 19.2-271.2; (2) the statement constituted inadmissible hearsay; and (3) the admission of the statement violated his Sixth Amendment rights. Because we find the admission of the statement violated Cairns' rights under the Sixth Amendment's Confrontation Clause, and that this error was not harmless, we reverse the convictions and remand for a new trial.

I. BACKGROUND

On appeal, we view the evidence in the light most favorable to the Commonwealth, the party prevailing below. Winckler v. Commonwealth, 32 Va.App. 836, 844, 531 S.E.2d 45, 49 (2000). In 1998, WW, age fourteen, and NC, age eleven, both female, were living with their parents, Cairns and his wife and codefendant, Alice Cairns.² WW testified about a variety of episodes of sexual activity to which her parents subjected her. WW reported that the first incident occurred on February 16, 1998, when "[she] had to give [her] mom and dad both oral sex, and they gave [her] oral sex."³ She also testified that her father "got on top" of her and "tried to have sex" with her, but she told him to stop "because it hurt."

Near the end of August, WW and NC "had to play a card game" with their parents. The children had been "grounded," and Cairns agreed they could reduce the amount of time they were grounded if they played "truth or dare," or cards "or something like that." in response, the girls agreed to make a movie, play two card games, and play two games of "truth or dare" in order to reduce their punishment.

That evening, WW, NC, Cairns, and Cairns' wife, Alice, made a movie.⁴ The two girls were in their parents' bedroom. Cairns and the two girls were on the bed, and Mrs. Cairns operated the video camera. At some point, the two children were naked. WW had "oral sex" with Cairns, who then had "oral sex" with her.⁵ NC also had "oral sex" with Cairns.⁶ NC explained, "we had to suck [Cairns'] dick and do stuff to each other and my mom." At one point, when she was not operating the camera, Mrs. Cairns put her tongue inside NC's vagina. At another time, Cairns got on top of WW and asked her to allow him to engage in sexual intercourse with her, but she refused. He asked her to do it for the sake of the camera, but she continued to refuse. He said, "fine," got off her and had NC give him "oral sex" a second time. WW gave him oral sex" again and NC complained that she was getting tired. As a result, she traded places with her mother and operated the camera. Mrs. Cairns then had "oral sex" with Cairns. The videotaping lasted about an hour. At a later time, Cairns played the tape in front of his two daughters.

A second movie was made, which WW did not recall. NC, however, described the taping as very similar in nature to the first tape. She explained that Cairns "made us suck his penis and lick my mom and each other and touch each other's boobs."⁷ Mrs. Cairns ultimately assisted Cairns in ejaculating at the end of the taping session.

In early September, WW played "strip poker" with her mother and father. When WW ran out of clothing to remove, she was issued some imaginary clothes. When she ran out of those, she was left with "doing favors." Cairns told her to "get on [her] back," and he "had sex with [her]," putting his penis inside her vagina.⁸ Cairns then "had sex" with his wife on the other side of the living room.

WW did not immediately report the incidents. She feared she and her siblings⁹ would be removed from the home and placed in a foster home. She also explained that Cairns would threaten to "ground" her if she refused to participate in the sexual conduct. NC did not report the events because she feared Cairns'"bad temper" and she feared being grounded. She testified that she was forced to participate in the reported activities "[m]ost of the time."

Both Cairns and his wife were interviewed by police, at the police station, prior to their arrests. In his statement, Cairns denied participating in any sexual conduct with the girls. Although Mrs. Cairns initially denied having any knowledge of the alleged activities, after the interviewing officer reminded her that she had a criminal record and told her, "the best thing you can do is be honest with us to help yourself out," she confirmed some of her daughters' allegations. Mrs. Cairns confirmed that her husband had sex with WW and that NC had performed oral sex on Cairns but did not specify the dates on which the conduct occurred. Mrs. Cairns stated that she had videotaped her husband on the bed "touching" the girls but denied that he had engaged in any sexual conduct with the girls during the filming, contrary to the testimony of WW and NC. She also denied having participated in any of the activities during the videotaping. She denied knowing where the videotapes were located, stating, "[Cairns] always did somethin' with `ern." Mrs. Cairns stated she disapproved of what her husband was doing with the daughters. When asked why she did not stop him, she replied, "there ain't a lot I can do about it, simply because he's quite a bit stronger than I am. 14e can overpower me...." She denied performing oral sex on either of the girls but admitted she had kissed the "top part" of WW's vagina.

Cairns and his wife were tried together during a bench trial. The trial court overruled Cairns' pretrial motion to suppress his wife's statement. Detective Ruth Baker, who took Mrs. Cairns' statement, testified as to its content, and the statement was introduced into evidence. The prosecuting attorney relied, in part, on Mrs. Cairns' statement in her closing argument, and the trial court found Cairns guilty of six of the seven charges against him.¹⁰

II. ANALYSIS

A. Marital Privilege

Cairns alleges the admission of his codefendant's statement violated the marital privilege protection provided by Code § 19.2-271.2. This allegation is without merit.

Code § 19.2-271.2 provides that "[i]n criminal cases ... neither [husband nor wife] shall be compelled to be called as a witness against the other, except [in certain specified instances]." The statute pertains specifically to testimony in criminal cases. The statement of Cairns' codefendant, his wife, was given to police prior to trial. Mrs. Cairns was not compelled to testify against Cairns, and, in fact, did not testify at their joint trial. Therefore, Code § 19.2-271.2 does not apply in this case. Livingston v. Commonwealth, 21 Va.App. 621, 628, 466 S.E.2d 757, 760 (1996) (statute does not pertain to information given during pretrial investigations).

B. Virginia's Statement Against Penal Interest Hearsay Exception

Cairns also alleges that his wife's statement constituted inadmissible hearsay under Virginia law. We disagree. A statement made by an unavailable witness that is against the witness' penal interest is admissible as an exception to the hearsay rule if three requirements are met: (1) the declarant must be unavailable to testify at trial; (2) the statement must be against the declarant's interest at the time it is made; and (3) the declarant must be aware at the time he or she makes the statement that the statement is against his or her interest. Rankins v. Commonwealth, 31 Va.App. 352, 361, 523 S.E.2d 524, 529 (2000). In addition, where the declarant "seeks to limit [her] culpability by implicating others," Lilly v. Commonwealth, 255 Va. 558, 573, 499 S.E.2d 522, 533 (1998),reed on other grounds, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), the reliability of the statement must be established by evidence other than the statement itself connecting the declarant to the crime. Id.; Rankins, 31 Va.App. at 362,523 S.E.2d at 529.

We hold that the trial court did not abuse its discretion in admitting Mrs. Cairns' statement as an exception to the hearsay rule. Under the Fifth Amendment, she could not have been compelled to testify; therefore, she was an unavailable witness. Lilly, 255 Va. at 573, 499 S.E.2d at 533.

In her statement to the police, Mrs. Cairns admitted kissing the "top part" of WW's vagina, and she admitted participating in the videotaping of her daughters while they were engaged in sexual conduct with Cairns. Therefore, because she implicated herself as a participant in at least one crime, her statement was clearly against her penal interest at the time it was made.

The record also shows that Mrs. Cairns knew her statement was against her interest at the time she made it. Although she was not under arrest when she spoke with the police, she knew her daughters had made allegations concerning the events that had occurred. Furthermore, she initially denied having any knowledge of and denied participating in the alleged events. Only after the interviewing officer reminded her that she had "already been convicted of some stuff in the past," and told her "[t]he best thing you can do is cooperate with us and tell us the truth and the whole truth," Mrs. Cairns admitted her involvement. The evidence clearly establishes that Mrs. Cairns understood her statement was against her penal interest.

In her...