Commonwealth v. Swann

• Decision Date: 28 August 2015
• Docket Number: Record No. 141387.
• Citation: 290 Va. 194,776 S.E.2d 265
• Parties: COMMONWEALTH of Virginia, Appellant, v. Storme Gary SWANN, a/k/a Henry Gary Simpson, a/k/a Gary Simpson, Appellee.
• Court: Virginia Supreme Court

290 Va. 194

776 S.E.2d 265

COMMONWEALTH of Virginia, Appellant

v.Storme Gary SWANN, a/k/a Henry Gary Simpson, a/k/a Gary Simpson, Appellee.

Record No. 141387.

Supreme Court of Virginia.

Aug. 28, 2015.

Opinion

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.

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 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 WL 4067967, at *4–7, 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 *6, 2014 Va.App. LEXIS 282, 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, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991) (Stevens, J., concurring)). A fundamental and longstanding precept of this doctrine is that “unnecessary 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, 122 S.Ct. 2179, 153 L.Ed.2d 413 (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, 29 S.Ct. 451, 53 L.Ed. 753 (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.

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 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...