Ellison v. Com.

• Decision Date: 06 October 1978
• Docket Number: No. 771488,771488
• Citation: 247 S.E.2d 685,219 Va. 404
• Parties: Charles Lewis ELLISON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 685

247 S.E.2d 685

219 Va. 404

Charles Lewis ELLISON v. COMMONWEALTH of Virginia.

Record No. 771488.

Supreme Court of Virginia.

Oct. 6, 1978.

W. Thomas Knowles, Portsmouth (J. Wayne Sprinkle, Portsmouth, on brief), for appellant.

Robert E. Bradenham, II, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

CARRICO, Justice.

The defendant, Charles Lewis Ellison, was convicted by a jury of robbery and murder and, in accordance with the verdicts, he was sentenced to serve two life terms in the penitentiary. The defendant seeks reversal on the ground that the trial court erred in refusing to permit a witness to testify before the jury that a third party had confessed to the robbery and murder with which the defendant was charged.

The record shows that on September 10, 1976, Ernest Marks, night manager of "Carma's Chicken" in Portsmouth, was mortally wounded by a shotgun blast during the course of a robbery committed by three assailants. In the robbery, Marks' credit cards, $100 in cash, and a radio were stolen.

On November 16, 1976, as part of an undercover "fencing" operation, agents of the Federal Bureau of Investigation purchased several of the credit cards which had been stolen from Marks. This transaction led to a meeting on December 10 between the defendant and two of the agents, who posed as members of the underworld interested in employing the defendant as a "hit man" and in helping him "to get out of the area" to avoid arrest for an attempted bank robbery. In a conversation recorded by the agents, the defendant admitted that he was the "trigger man" in the robbery and murder of Ernest Marks. Subsequently, the defendant was arrested and charged with the Marks crimes.

At trial below, the tape containing the defendant's confession was played before the jury. Later, testifying in his own behalf, the defendant repudiated his confession. He stated that, from information he "heard on the street," he had falsified the story of his involvement in the Marks robbery and murder to induce the purported underworld figures to employ him and to "help (him) get out of town."

Out of the presence of the jury, the defendant proffered testimony relating to the third-party confession in dispute here. Karen Hampton testified that in November, 1976, following her arrest on charges unrelated to the Marks robbery and murder, she was asked by the police whether she knew anything concerning the Marks incident.

According to Hampton's testimony, she told the police that on November 1, shortly before her arrest, she had met Joseph Brown and a companion on the street and that the pair had tried to sell her a radio. When she asked Brown "what was happening," he replied that the police were "after him again" because he was "supposed to have splattered some (man) across the street" at Carma's. Brown, Hampton testified, complained that "(w)e didn't get but a lousy hundred dollars and this radio." Brown also told her, Hampton said, that the police had talked to someone named Betty and that he was concerned about "what she was going to do."

Diane Flythe testified that she had observed Hampton conversing with Brown on November 1. Flythe stated, however, that she had not overheard the conversation.

James Backus, an attorney, testified that, based upon Karen Hampton's information, the police had arrested Joseph Brown and charged him with the Marks robbery and murder. Backus, who had been appointed to represent Brown in connection with the charges, testified further that the general district court had certified Brown to the grand jury; that Brown had been indicted; and that, when the Commonwealth's Attorney learned of the present defendant's confession to the FBI agents, the charges against Brown were nolle prossed. Backus stated also that Brown had denied complicity in the Marks robbery and murder. Finally, Backus, as well as others called by the defense, testified concerning the unavailability of Brown as a witness at the defendant's trial.

Holding that the defendant had failed to establish the reliability of Brown's confession and, accordingly, that the testimony relating thereto was barred by the hearsay rule, the trial court refused to permit Karen Hampton to testify before the jury. This refusal, the defendant contends, was error.

The defendant argues that Brown's confession was a declaration against penal interest and that, in Virginia, such a declaration by a dead or otherwise unavailable witness is admissible as an exception to the hearsay rule. Proof of the reliability of Brown's confession was not required, the defendant maintains, and the "bare confession," therefore, should have been submitted to the jurors "for what they might consider it worth."

In Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923), this court, adopting a rule admittedly "out of line with the current of authority," held that evidence of an extra-judicial confession, exculpatory of the accused and made by a dead or otherwise unavailable witness, is admissible as an exception to the hearsay rule. Accordingly, we reversed a murder conviction and ordered a new trial to permit jury consideration of evidence relating to such a confession. Later, in Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d 318 (1950), upon the precedent of Hines, we reversed another murder conviction for the trial court's refusal to admit similar evidence.

Although Hines and Newberry recognize a declaration against penal interest as an exception to the hearsay rule, neither case stands for the proposition, asserted by the defendant here, that a "bare confession" is admissible without supporting proof of its reliability. Indeed, we believe both cases stand for the contrary proposition.

While this court did state in Hines that it was "disposed to think that the evidence of even a bare confession by a deceased or unavailable witness ought to go to the jury for what they may consider it worth," this view was not adopted. Instead, because the decision to recognize a declaration against penal interest as an exception to the hearsay rule was contrary to "the current of authority," this court expressly limited the precedential effect of its holding to "the particular facts of the case in hand." 136 Va. at 747, 117 S.E. at 848. Its "new rule" with reference to declarations against penal interest, the court stated, would be applicable to cases "where there is anything substantial other than the bare confession to connect the declarant with the crime." 136 Va. at 748, 117 S.E. at 849.

The "particular facts" of Hines showed that only one person had committed the murder there involved and that the third-party declarant had confessed separately to three witnesses that he was the murderer. In one statement, the declarant expressly exonerated the accused by name. In addition, other evidence extrinsic of the confessions connected the declarant with the crime.

Similarly, in Newberry, we limited the holding to "the facts and circumstances of (that) case." 191 Va. at 462, 61 S.E.2d at 326. Those facts and circumstances showed that a brother of the accused had confessed in writing that he alone had committed the murder with which the accused was charged. The declarant had also stated to two witnesses that he was the murderer. In addition, other evidence incriminated the declarant.

Thus, we believe it is settled in Virginia that, while a declaration against penal interest is recognized as an exception to the hearsay rule, such a declaration made out of court by a dead or otherwise unavailable witness is admissible only upon a showing that the declaration is reliable. We make no attempt here to delineate the quality or quantity of evidence necessary to establish reliability; the question must be left to the sound discretion of the trial court, to be determined upon the facts and circumstances of each case. But, in any case, once it is established that a third-party confession has been made, the crucial issue is whether the Content of the confession is trustworthy. And determination of this issue turns upon whether, in the words of Hines, the case is one where "there is anything substantial other than the bare confession to connect the declarant with the crime."

We reject, therefore, the defendant's contention that Brown's "bare confession" should have been submitted to the jury. The defendant argues, however, that, even if he was required to establish the reliability of the confession, he satisfied the requirement.

In this connection, the defendant argues that "it must be remembered that Hampton's testimony had been reliable enough in Brown's case to have the . . . General District Court find probable cause against him for the instant charges and to have him indicted for the charges." The Commonwealth, the defendant says, relied on Hampton's testimony "in each instance" and, furthermore, in general district court, Hampton was under oath and subject to cross-examination. In addition, the defendant asserts, Diane Flythe observed Hampton conversing with Brown at the time Hampton claimed that Brown had confessed.

Although this argument is difficult to understand, we take it to mean that the matters therein recited corroborate the fact that Brown had confessed to Hampton, that Hampton, therefore, was a reliable witness and, accordingly, that the reliability of Brown's confession was thereby established. If this is the defendant's argument, it misses the point. The issue is not whether Brown actually confessed to Hampton or whether she was a reliable witness; we can assume that both these matters were established. The issue is whether the Content of Brown's confession was reliable, and, in resolving this issue, we search the record for indicia of trustworthiness in the form of evidence from other witnesses that Brown confessed to them, extrinsic evidence connecting him with...