Lynch v. Com., Record No. 0107-04-1.

• Decision Date: 16 August 2005
• Docket Number: Record No. 0107-04-1.
• Citation: 617 S.E.2d 399
• Parties: Lester Bernard LYNCH, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 399

617 S.E.2d 399

Lester Bernard LYNCH, Jr. v. COMMONWEALTH of Virginia.

Record No. 0107-04-1.

Court of Appeals of Virginia, Chesapeake.

August 16, 2005.

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

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BENTON, HUMPHREYS and CLEMENTS, JJ.

HUMPHREYS, Judge.

Appellant Lester B. Lynch ("Lynch") appeals his convictions, following a jury trial, for first-degree murder, statutory burglary, robbery, and three counts of using a firearm in the commission of a felony. On appeal, Lynch contends that the trial court erroneously admitted an out-of-court statement under the adoptive admission exception to the hearsay rule. For the reasons that follow, we disagree, and affirm his convictions.

I. BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Gonzales v. Commonwealth, 45 Va.App. 375, 378, 611 S.E.2d 616, 617 (2005) (en banc). So viewed, the evidence in this case establishes the following.

On June 9, 2001, Belinda Scott was shot and killed inside her home by Lynch, "Tyreke" Williams, and a third, unidentified man. After the shooting, Lynch and Tyreke "burst" into a bedroom occupied by Belinda's son, Ronald, and his friend, Tamika Reid. The third man remained outside the bedroom door. Tyreke told Ronald to "get on his knees," pointed a gun at him, and told Tamika "not to move." Tyreke then repeatedly hit Ronald on the head with the gun and took some money out of Ronald's pockets, while Lynch removed heroin and money from a table in the room. The third man eventually told Tyreke and Lynch, "Let's get out of here." The three men then "ran out of the house."

Earlier that afternoon, Kenneth Parker was "hanging out" at Tyreke's house with Christopher, Tyreke's brother. Kenneth saw Lynch drive up to the house in a black Acura. Tyreke was in the passenger seat. Lynch got out of the car to talk to Christopher, and Tyreke went across the street to get a gun. After he returned, Tyreke agreed to give Kenneth a ride home. Kenneth then got into the Acura with Lynch, Tyreke, and the unidentified third man. However, when Kenneth said that he needed to cross the Campostella Bridge, Lynch told him that they were going on a "sting," and they needed to "take care of [that] first." Thus, Kenneth got out of the car, and Lynch told him that they would return in about thirty minutes.

When the three men returned to Tyreke's house, Kenneth noticed that Tyreke was wearing a different shirt and had small bloodstains on his clothing. Tyreke carried something into his house wrapped up in the shirt he had been wearing before the murder. Kenneth followed. After entering the house, Tyreke went directly to an upstairs bathroom, and Kenneth sat in the upstairs den. Lynch did not enter the house immediately, but remained in the driveway speaking to the third man, who was "looking down at the ground like something was really bothering him."

When Tyreke left the bathroom, he knocked on Christopher's door and told him that "they had just shot a woman." Kenneth joined the conversation and asked Tyreke, "man, what you done got yourself into? You-all done shot a woman?" Tyreke responded, "yeah." Kenneth asked, "where was you-all at?" Tyreke responded, "we went to Little Ronald's house ... to go get him." Kenneth then asked, "why would you-all go in and try to do something and rob him or whatever when he cool with everybody?" Tyreke then said that he "don't care who I get" because "[m]y light's due, my rent due, my girl getting ready to leave," and he was "going to get put out."

As Kenneth, Christopher, and Tyreke were discussing whether the "skinny lady" who had been shot was Ronald's mother or sister, Kenneth heard someone climbing the stairs. As Lynch reached the top of the stairs, he asked Tyreke "why he was telling [Kenneth and Christopher] what they had just done." Although Tyreke told Lynch that Kenneth was "cool" and would not tell anyone, Kenneth said he would have "nothing to do with it," and left the house. Kenneth called Ronald's cellular phone and spoke with Tamika, who was still hysterical over the events she had just witnessed.

On September 5, 2001, a grand jury indicted Lynch for "feloniously [] kill[ing] and murder[ing] Belinda Scott," in violation of Code §§ 18.2-32 and 18.2-10, "us[ing], attempt[ing] to use, or display[ing] a firearm while committing ... [m]urder," in violation of Code § 18.2-53.1, "break[ing] and enter[ing] in the nighttime while armed with a deadly weapon, the dwelling house of Belinda Scott, with intent to commit robbery," in violation of Code § 18.2-90, "us[ing], attempt[ing] to use, or display[ing] a firearm while committing ... [a]rmed [b]urglary," in violation of Code § 18.2-53.1, "rob[bing] Ronald Scott of U.S. currency, having some value," in violation of Code § 18.2-58, and, "us[ing], attempt[ing] to use, or display[ing] a firearm while committing ... [r]obbery," in violation of Code § 18.2-53.1.

Before Kenneth testified at trial, the Commonwealth informed the court that it intended to introduce the statement, "Why you telling them what we just did?" under the adoptive admission exception to the hearsay rule. The parties "argued the matter in chambers," and, based on the Commonwealth's proffer, the court ruled that the statement was admissible.

The jury found Lynch guilty of all six counts as charged in the indictments, and the court sentenced Lynch, in accordance with the jury's recommendation, to thirty years for first-degree murder, twenty years for statutory burglary, five years for robbery, five years for use of a firearm while committing murder, five years for use of a firearm while committing robbery, and three years for use of a firearm while committing burglary. The court set the sentences to run consecutively resulting in a total active sentence of sixty-eight years in prison. Lynch appeals.

II. ANALYSIS

On appeal, Lynch contends that the trial court erroneously admitted the statement, "Why you telling them what we just did?" coupled with the substance of the preceding conversation between Kenneth, Tyreke, and Christopher, under the adoptive admission exception to the hearsay rule, reasoning that the evidence was insufficient to demonstrate that Lynch had overheard enough of the conversation to understand what was being discussed. For the reasons that follow, we disagree.

A.

"`The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.'" Gonzales, 45 Va.App. at 380, 611 S.E.2d at 618 (quoting Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988)). "However, `by definition, when the trial court makes an error of law, an abuse of discretion occurs.'" Id. (quoting Bass v. Commonwealth, 31 Va.App. 373, 382, 523 S.E.2d 534, 539 (2000)).

Hearsay evidence is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule. Clay v. Commonwealth, 33 Va.App. 96, 104, 531 S.E.2d 623, 626-27 (2000) (en banc); see also West v. Commonwealth, 12 Va.App. 906, 909, 407 S.E.2d 22, 23 (1991). And, if the admissibility of a hearsay statement is conditioned upon a finding of certain predicate facts, the party seeking to admit the hearsay evidence must prove, by a preponderance of the evidence, each of those qualifying factors. See Rabeiro v. Commonwealth, 10 Va.App. 61, 64-65, 389 S.E.2d 731, 733 (1990) ("On factual issues relating to the admissibility of evidence, the burden of persuasion is proof by a preponderance of the evidence."); see also Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984) (noting that the party seeking to have a hearsay declaration admitted "must clearly show" that the evidence falls within an exception to the hearsay rule); Neal v. Commonwealth, 15 Va.App. 416, 420-21, 425 S.E.2d 521, 524 (1992) ("[T]he party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility.").¹ These "antecedent facts" must be "determined by the court, and not by the jury." Mullins v. Commonwealth, 113 Va. 787, 791, 75 S.E. 193, 195-96 (1912) (internal quotations omitted); see also Rabeiro, 10 Va.App. at 64, 389 S.E.2d at 732 ("The factual determinations which are necessary predicates to rulings on the admissibility of evidence and the purposes for which it is admitted are for the trial judge and not the jury.").

When deciding whether the proponent of the hearsay statement has sustained his burden of proving the necessary predicate facts, "the trial court, acting as a fact finder, must evaluate the credibility of the witnesses, resolve the conflicts in their testimony and weigh the evidence as a whole." Albert v. Commonwealth, 2 Va.App. 734, 738, 347 S.E.2d 534, 536 (1986). Thus, the trial court's determination that these factual prerequisites have been met "`is to be given the same weight by the appellate court as is accorded the finding of fact by a jury.'" Id. (quoting Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296-97 (1975)); see also Rabeiro, 10 Va.App. at 64, 389 S.E.2d at 733.

Accordingly, when reviewing a trial court's decision to admit a statement under an exception to the hearsay rule, this Court must first decide whether the evidence supports the trial court's conclusion that the proponent of the statement established each of the factual prerequisites for application of the designated hearsay exception. If those factual findings are plainly wrong or without evidence to support them, we will reverse the trial court because it abused its discretion, as a matter of law, in determining that the hearsay exception applied. See Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 563, 463 S.E.2d...