Lynch v. Com.

• Decision Date: 08 June 2006
• Docket Number: Record No. 052079.
• Citation: 630 S.E.2d 482
• Parties: Lester Bernard LYNCH, Jr. v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 482

630 S.E.2d 482

Lester Bernard LYNCH, Jr. v. COMMONWEALTH OF VIRGINIA.

Record No. 052079.

Supreme Court of Virginia.

June 8, 2006.

L. Steven Emmert (Sykes, Bourdon, Ahern & Levy, on briefs), Virginia Beach, for appellant.

Rosemary V. Bourne, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., LACY, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and RUSSELL, S.J.

OPINION BY Senior Justice CHARLESS. RUSSELL.

Lester Bernard Lynch, Jr., was convicted by a jury in the Circuit Court of the City of Norfolk of first-degree murder, armed robbery, burglary and three firearms offenses. He was sentenced to a total of 68 years confinement. The Court of Appeals affirmed the convictions, Lynch v. Commonwealth, 46 Va.App. 342, 617 S.E.2d 399 (2005), and denied a petition for rehearing en banc. We awarded Lynch an appeal. There are two assignments of error: (1) that the Court of Appeals erred in ruling that certain testimony was admissible against Lynch as an adoptive admission, and (2) that the Court of Appeals erred in ruling that a litigant offering evidence under an exception to the hearsay rule has the burden of showing that the exception applies by a preponderance of the evidence, rather than by clear and convincing evidence.

Facts

Under familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial. On June 9, 2001, Ronald Scott and Tamika Reid were visiting Scott's mother, Belinda Scott, in her home. Three men entered the house and struck Ronald Scott repeatedly with a gun, robbed him, shot Belinda Scott in the face, fatally, and stole other items from the house before leaving. The surviving witnesses, Ronald Scott and Tamika Reid, both identified the defendant, Lynch, as one of the three perpetrators. Scott also identified Gregory Williams as another of the trio, but neither could identify the third man.

At trial, the court heard the testimony of Kenneth Parker out of the presence of the jury by agreement of counsel. Parker's evidence was proffered by the Commonwealth to lay a foundation for an adoptive admission. At the conclusion of the proffer, the court ruled that Parker's testimony would be admitted under an exception to the hearsay rule. Because this appeal concerns only that ruling, we will confine our consideration of the evidence to the pertinent parts of Parker's proffered testimony on which the ruling was based.

Parker testified that he was visiting Christopher Williams, Gregory's brother, on the day of the crimes. Parker was standing at the head of the stairs in Christopher's house, engaged in a conversation with Christopher, who was standing in his bedroom door. Gregory Williams had recently arrived and was also present. Gregory was telling Christopher what had just happened at the Scott house. Parker, who knew Ronald Scott and his mother, entered the conversation. Gregory said that "they had just come from off a sting at Little Ronald's house" and that there was "another little young guy downstairs standing at the car" who was "trigger happy" and had "shot a woman." While Gregory was telling what had happened at the Scott house, Lynch came up the stairs and said, "why is you telling them what we just done?"

On cross-examination, Parker elaborated. He testified that he did not know exactly when Lynch entered the house and began overhearing the conversation, but "he might have been standing at the bottom of the stairs listening to us the whole time." In any event, the conversation had lasted long enough to go into some detail. Parker, after hearing about the murder, said to Gregory, "you know, that was probably that man's mama." Gregory replied, "no, it was a skinny lady." Parker said that Ronald Scott's mother was "skinny." Gregory said, "probably was his sister." Parker testified that he then said, "his sister and them don't even stay there. His mama stay there. You all probably hurt that man's mama, you know what I am saying? As I was saying that to him, [Lynch] was coming up the stairs . . . . I am quite sure he was hearing everything." It was at that point that Lynch asked Gregory "why was he telling us that . . . what we just done." At the conclusion of the proffer, the trial court overruled Lynch's hearsay objection and found that Parker's testimony showed that Lynch had heard the statements that incriminated him, fully understood them, had a full opportunity to deny them, but instead acquiesced in them. The court admitted the evidence and Parker's testimony before the jury was substantially the same as the proffer. Neither Gregory Williams nor Christopher Williams testified at the trial.

Analysis

A party relying upon an exception to the hearsay rule for the admissibility of evidence bears the burden of persuading the court that the evidence falls within the exception.^* We have consistently held that the standard of proof to meet that burden is by a preponderance of the evidence, not by the higher "clear and convincing" standard. Bloom v. Commonwealth, 262 Va. 814, 821, 554 S.E.2d 84, 87 (2001); Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296 (1975). Factual questions must usually be resolved to determine whether the proponent of the evidence has carried that burden, and those antecedent or predicate facts are to be determined by the trial court alone. If the court admits the evidence, the credibility of the witnesses and the weight of the evidence are to be determined by the jury. Bloom, 262 Va. at 821, 554 S.E.2d at 87; Mullins v. Commonwealth, 113 Va. 787, 791, 75 S.E. 193, 195-96, (1912). Therefore, Lynch's second assignment of error is not well taken.

We now turn to the legal correctness of the trial court's decision to admit the statements of Gregory Williams. In Knight v. Commonwealth, 196 Va. 433, 83 S.E.2d 738 (1954), we said:

The general rule that when a statement accusing one of the commission of an offense is made in his presence and hearing and is not denied or contradicted by him, both the statement and the fact of his failure to deny are admissible in a criminal proceeding against him, as evidence of his acquiescence in its truth, is based on the theory that the natural reaction of one accused of a crime is to deny the accusation if it is unjust or untrue. The accusation and his silence thereunder to be admissible must, however, have been under such circumstances as...