Catherine Palmer v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
CATHERINE PALMER
MEMORANDUM OPINION * BY
v. Record No. 3265-01-1 JUDGE JERE M. H. WILLIS, JR.
APRIL 22, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Willard M. Robinson, Jr. (Law Offices of
Willard M. Robinson, Jr., on brief), for
appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
On appeal from her bench trial conviction of abuse and
neglect of a child in violation of Code § 18.2-371.1(A), 1
Catherine Palmer contends that the trial court erred in admitting
into evidence a copy of an order of the Newport News Circuit Court
convicting Lorenzo Brown of second-degree murder. She argues that
admission of that order violated her Sixth Amendment right to
confront the witnesses against her and that the order was
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Code § 18.2-371.1(A) provides in pertinent part that
"[a]ny parent, guardian, or other person responsible for the
care of a child under the age of eighteen who by willful act or
omission . . . causes or permits serious injury to the life or
health of such child shall be guilty of a Class 4 felony."
irrelevant to the issues at her trial. 2 We affirm the judgment of
the trial court.
FACTS
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
At about 8:00 p.m. on August 9, 1999, Palmer left her
four-month-old baby, Jamal Palmer (Jamal), alone with Brown while
she went out for drinks with a friend. She knew Brown had
consumed several cans of beer and was intoxicated. She also knew
that Brown had "messed with" Jamal in the past, touching him in
inappropriate, sexual ways. Members of her family had expressed
to her concern about her leaving Jamal with Brown. Palmer knew
that Brown had "holler[ed] at" Jamal earlier that day when Jamal
was crying. Before leaving the house, she told Brown, "Don't let
nothing happen to my baby." When she returned home at about
11:00 p.m., she learned that Jamal had been taken by ambulance to
the hospital.
2
Appellant also complains that she was "caught by surprise"
by the introduction of the conviction order. However, appellant
does not contend that the Commonwealth was obligated to provide
the order to her in pretrial discovery. Nor does she supply any
authority that the conviction order should have been excluded on
the basis of that "surprise."
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The paramedics who were called to Brown's house at 10:16 that
night found Brown holding Jamal, who was limp. Jamal died the
following day. The medical examiner who performed an autopsy
testified that Jamal had suffered numerous injuries and that the
cause of his death was acute blunt force trauma to the head.
The medical examiner testified that Jamal's injuries were
characteristic of shaken baby impact syndrome. This syndrome
reflects injuries caused by a violent shaking of the baby's head,
causing the head to whip back and forth. During the shaking, the
child's head strikes a hard object, such as a wall or a piece of
furniture, causing skull fractures and head bruising.
Jamal's injuries also reflected squeezing pressure applied to
his chest with sufficient force to bend and snap the ribs. He
also suffered injuries to his genital and anal areas indicating
sexual abuse. His injuries were consistent with several violent
acts committed upon him at or near the same time.
Over Palmer's objection, the trial court received into
evidence a properly authenticated and certified copy of Brown's
March 1, 2001 order of conviction of second-degree murder.
Detective R.B. Sherrill testified without objection that he was
present in court on March 1, 2001, when Brown was convicted of
the second-degree murder of Jamal.
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ANALYSIS
Hearsay and the Confrontation Clause
As a threshold to Palmer's Sixth Amendment argument, we
first consider whether the conviction order was hearsay and if
so, whether it fell within a recognized exception to the hearsay
rule.
Hearsay is defined as "an out-of-court statement offered to
prove the truth of the matter asserted." Garcia v.
Commonwealth, 21 Va. App. 445, 450, 464 S.E.2d 563, 565 (1995)
(en banc). In order for hearsay to be admissible, it must "come
within one of the many established exceptions to the general
prohibition against admitting hearsay." Hanson v. Commonwealth,
14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992). "'[T]he party
seeking to rely upon an exception to the hearsay rule has the
burden of establishing admissibility.'" Braxton v.
Commonwealth, 26 Va. App. 176, 183-84, 493 S.E.2d 688, 691
(1997) (quoting Neal v. Commonwealth, 15 Va. App. 416, 420-21,
425 S.E.2d 521, 524 (1992)).
Brown's conviction order was hearsay, as it was offered to
prove the truth of the information it contained. However, it
fell within the scope of Code § 8.01-389(A), a statutory
exception to the hearsay rule, which provides: "The records of
any judicial proceeding and any other official records of any
court of this Commonwealth shall be received as prima facie
evidence provided that such records are authenticated and
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certified by the clerk of the court where preserved to be a true
record." This statute "'codifies as part of the official
records exception to the hearsay rule judicial "records" which
are properly authenticated.'" Taylor v. Commonwealth, 28
Va. App. 1, 11, 502 S.E.2d 113, 117 (1998) (en banc) (citation
omitted). Brown's conviction order qualified for admission
under Code § 8.01-389(A). See Owens v. Commonwealth, 10
Va. App. 309, 311, 391 S.E.2d 605, 607 (1990).
Hearsay admissible under Virginia law also must be
scrutinized to determine whether it infringes upon the criminal
defendant's constitutional right to confront the witnesses
against him.
In all criminal prosecutions, state as well
as federal, the accused has a right,
guaranteed by the Sixth and Fourteenth
Amendments to the United States
Constitution, "to be confronted with the
witnesses against him." U.S. Const., Amdt.
6; Pointer v. Texas, 380 U.S. 400 (1965)
(applying Sixth Amendment to the States).
"The central concern of the Confrontation
Clause is to ensure the reliability of the
evidence against a criminal defendant by
subjecting it to rigorous testing in the
context of an adversary proceeding before
the trier of fact." Maryland v. Craig, 497
U.S. 836, 845 (1990). . . . [T]he veracity
of hearsay statements is sufficiently
dependable to allow the untested admission
of such statements against an accused when
(1) "the evidence falls within a firmly
rooted hearsay exception" or (2) it contains
"particularized guarantees of
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trustworthiness" such that adversarial
testing would be expected to add little, if
anything, to the statements' reliability.
Lilly v. Virginia, 527 U.S. 116, 123-25 (1999).
The official records exception has been accepted as a
firmly rooted exception to the hearsay rule. See Ohio v.
Roberts, 448 U.S. 56, 66 n.8 (1980); Chapman v. State, 628 A.2d
676, 681 n.3 (Md. 1993). Moreover, as noted above, this Court
has recognized the inherent trustworthiness of official judicial
records. See Ingram v. Commonwealth, 1 Va. App. 335, 338, 338
S.E.2d 657, 658-59 (1986). Accordingly, admission of Brown's
conviction order did not violate Palmer's rights under the
Confrontation Clause. See Lilly, 527 U.S. at 124-25.
Relevancy and Competency
As with all evidence, to be admissible, Brown's conviction
order must also have been relevant and competent to address
issues pertaining to Palmer's trial. "Evidence is generally
admissible if it 'is both material – tending to prove a matter
which is properly at issue in the case – and relevant – tending
to establish the proposition for which it is offered.'" Taylor
v. Commonwealth, 17 Va. App. 271, 275, 437 S.E.2d 202, 204
(1993) (citation omitted). "'[E]very fact, however remote or
insignificant, that tends to establish the probability or
improbability of a fact in issue, is admissible.' In addition,
evidence that adds 'force and strength to other evidence bearing
upon' an issue presented is admissible." Caccioppo v.
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Commonwealth, 20 Va. App. 534, 538, 458 S.E.2d 592, 595 (1995)
(citation omitted).
Palmer argues that this case is analogous to cases
involving charges against principals in the second degree. In
such cases, the Commonwealth must prove the commission of the
crime by the principal in the first degree. See Fleming v.
Commonwealth, 13 Va. App. 349, 352, 412 S.E.2d 180, 182 (1991).
To prove the charge against the principal in the second degree,
the Commonwealth must present evidence proving the guilty
conduct of the principal in the first degree. A mere recital of
the first degree principal's conviction is insufficient. See
id. See also Sult v. Commonwealth, 221 Va. 915, 275 S.E.2d 608(1981); Hall v. Commonwealth, 8 Va. App. 526, 383 S.E.2d 18(1989). Indeed, "conviction of a principal in the first degree
is not a condition precedent to conviction of an accessory
. . . ." Dusenbery v. Commonwealth, 220 Va. 770, 771, 263
S.E.2d 392, 393 (1980). The alleged principal in the second
degree has the right to challenge at trial and on appeal the
sufficiency of the evidence to prove the guilt of the principal
in the first degree. See Sult, 221 Va. at 917, 275 S.E.2d at
608; Fleming, 13 Va. App. at 353-55, 412 S.E.2d at 181-82.
Had Palmer been tried as a principal in the second degree
to an offense committed by Brown, she would have been entitled
to confront and to challenge the sufficiency of the evidence
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proving that he committed the underlying offense. Mere proof of
his conviction of the offense would have been insufficient.
We find the analogy apt. Palmer was charged, as a
principal in the first degree, with causing or permitting
serious injury to her child by her willful act or omission,
specifically by leaving Jamal in Brown's care with the result
that Jamal suffered severe and fatal injuries inflicted by
Brown. Evidence that Brown inflicted those injuries upon Jamal
while the child was in his care was relevant to the charge.
However, Brown's conviction was not an element of the charge
against Palmer, and evidence proving that conviction was
irrelevant.
Brown's conviction order proved only that on March 1, 2001,
he was convicted of second-degree murder. The order did not
identify the victim or the circumstances of the murder. It did
not identify any injury inflicted upon the victim by Brown. It
provided no proof of any element of Palmer's trial. Thus, the
order was irrelevant, and the trial court erred in admitting it
into evidence.
Harmless Error
Non-constitutional error will be deemed harmless if:
"it plainly appears from the record and the
evidence given at trial that the error did
not affect the verdict." "An error does not
affect a verdict if a reviewing court can
conclude, without usurping the [fact
finder's] function, that had the error not
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occurred, the verdict would have been the
same."
Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620
(1994) (citations omitted).
The evidence proved overwhelmingly that Palmer knew that
Brown had sexually molested Jamal before. She had been warned
by family members not to leave Jamal with Brown. On the evening
in question she knew that Brown had been drinking, yet she left
the child with him while she went drinking with a friend. She
acknowledged the danger by admonishing Brown, "Don't let nothing
happen to my baby." Under these circumstances, created by
Palmer's neglect, Brown generally and sexually abused Jamal,
inflicting serious and fatal injuries on him. Based on those
injuries and on Jamal's resulting death, Brown was convicted of
second-degree murder. Thus, independently of the erroneously
admitted order, the evidence overwhelmingly and compellingly
established Palmer's guilt. We hold, therefore, that the
admission of the order was harmless error.
The judgment of the trial court is affirmed.
Affirmed.
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