Robert Michael Baber v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia
ROBERT MICHAEL BABER
MEMORANDUM OPINION * BY
v. Record No. 2832-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 8, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
David F. Berry, Judge Designate
Norman Lamson for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
The trial judge convicted Robert Michael Baber of grand
larceny. Baber contends his conviction must be reversed because
the trial judge erred by admitting hearsay evidence. We hold that
the judge erred by admitting the evidence but that the error was
harmless.
I.
The evidence proved that Robert Michael Baber purchased a
toolbox in a Sears department store on the evening of January 12,
2001. Chad Bush, a sales employee in the hardware area, testified
that he gave Baber a receipt for the toolbox and put a piece of
"Sears tape" on the toolbox to indicate it had been purchased. He
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
also testified that he did not sell Baber a generator or any item
other than the toolbox. When asked whether he sold a generator
that day, Bush testified, "[n]ot that I recall." He further
testified that Baber was with another man when he sold him the
toolbox.
Ricky Thompson, another sales employee, saw Baber in the
hardware area and later saw him walking out of the store next to a
man who was pushing a cart. Thompson noticed that a "Companion"
generator, model "5250," was in the cart. He stopped the men
outside of the store entrance and asked if they had a receipt for
the generator. Thompson testified Baber replied that his wife had
the receipt and that she was somewhere in the mall. He said one
of the two men then pointed to the generator and "said there's a
receipt right there," referring to a receipt that was attached to
the generator with a piece of tape. Thompson inspected the
receipt, noticed it was not for the generator, which was valued at
$629.99, and told the men the receipt was for a $9.99 toolbox.
Baber told Thompson the employee who sold him the toolbox also
sold him the generator. Recognizing the identification number of
the sales employee on the receipt, Thompson said he could check
with the employee. Baber and the other man walked away with the
generator in the cart.
Thompson conferred with Kenneth Kirby, the assistant manager,
who was close by. Kirby testified he had observed Thompson and
the men from a distance and noticed the generator, which was out
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of its box and was marked "Companion 5250Y." When Kirby learned
that the receipt was not for the generator, he and Thompson went
to speak with Bush, the employee whose identification number was
on the sales receipt. Kirby also asked other sales employees
whether they had sold a generator within the last hour. He and
Thompson then entered the generator's "part number" into a
computer that is connected to all cash registers in the store.
Over Baber's hearsay objection, Kirby and Thompson testified that
the computer screen showed that no generators had been sold that
day. Kirby also testified that the computer system was never
known to be inaccurate. Neither Kirby nor Thompson caused the
computer to print the information displayed on the computer
screen.
Kirby testified that he then went to the parking lot where he
saw Baber walking next to a man who was pushing the cart. When he
reached them, Baber and the man were loading the generator in the
trunk of a car. Kirby noticed other people around the car,
including a woman who was later identified as Baber's wife. When
Kirby asked Baber for a receipt, Baber cursed and told him his
employee had the receipt. Kirby returned to the store and called
the police. The evidence also proved that several days later,
Bush found a toolbox "down by the generators."
At the conclusion of the evidence, the judge convicted Baber
of grand larceny.
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II.
Baber contends the trial judge erred when he admitted into
evidence the testimony of Thompson and Kirby concerning the
information displayed on the computer screen. He argues that the
testimony about the information was hearsay, that the business
records exception is not applicable because the Commonwealth did
not enter into evidence the printed information displayed on the
computer screen, and that the testimony involves an "absence of a
business record," which is an exception to the hearsay rule that
Virginia has not yet recognized. The Commonwealth asserts that
the issue is moot, the evidence was not hearsay, and the evidence
was admissible as a business record exception to the hearsay rule.
A.
"Hearsay evidence is defined as a spoken or written
out-of-court declaration or nonverbal assertion offered in court
to prove the truth of the matter asserted therein." Arnold v.
Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987).
The rule is well established "that hearsay evidence is
inadmissible unless it falls within one of the recognized
exceptions to the hearsay rule and that the party attempting to
introduce a hearsay statement has the burden of showing the
statement falls within one of the exceptions." Robinson v.
Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476-77 (1999)
(citations omitted).
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The Supreme Court has addressed the matter of computer
records and hearsay.
In determining the admissibility of
computer records, when the argument has been
advanced that they are inadmissible hearsay,
we have employed the traditional business
records exception to the hearsay rule.
"Under the modern Shopbook Rule, adopted
in Virginia, verified regular entries may be
admitted into evidence without requiring
proof from the regular observers or record
keepers," generally limiting admission of
such evidence to "facts or events within the
personal knowledge of the recorder."
However, this principle does not necessarily
exclude all entries made by persons without
personal knowledge of the facts recorded; in
many cases, practical necessity requires the
admission of written factual evidence that
has a circumstantial guarantee of
trustworthiness.
"The trustworthiness or reliability of
the records is guaranteed by the regularity
of their preparation and the fact that the
records are relied upon in the transaction
of business by the person or entities for
which they are kept." "Admission of such
evidence is conditioned, therefore, on proof
that the document comes from the proper
custodian and that it is a record kept in
the ordinary course of business made
contemporaneously with the event by persons
having the duty to keep a true record."
Kettler & Scott, Inc. v. Earth Tech. Cos., Inc., 248 Va. 450,
457, 449 S.E.2d 782, 785-86 (1994) (citations omitted and
emphasis added).
B.
Thompson and Kirby testified that they read the computer
display and learned from it that no generators had been sold.
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The Commonwealth contends Tatum v. Commonwealth, 17 Va. App.
585, 440 S.E.2d 133 (1994), and Penny v. Commonwealth, 6
Va. App. 494, 370 S.E.2d 314 (1988), hold that this testimony is
not hearsay. The Commonwealth asserts that, as in those cases,
neither witness' testimony concerned an "out-of-court
declarant's veracity or perceptions." We disagree.
In Tatum, we specifically held that, "[i]n this case, there
is no 'out-of-court asserter,' because the caller ID display is
based on computer generated information and not simply the
repetition of prior recorded human input or observation." 17
Va. App. at 588, 440 S.E.2d at 135. Likewise, in Penny, we
noted that the telephone "call trap" generated a number that was
not based on any data entered by a human. 6 Va. App. at 498,
370 S.E.2d at 317. The evidence in this case proved, however,
that the information displayed on the computer screen was in
part a function of data entered into the system by various sales
associates. Thus, we hold that the testimony of both witnesses
was merely a recitation of information shown by the computer's
display of inventory data, which was based on input by various
individuals. This evidence constitutes hearsay unless within a
recognized exception.
C.
The Commonwealth contends that the testimony of the
witnesses established that the computerized inventory is a
record prepared and relied upon in the regular course of
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business. The Commonwealth correctly notes that the Supreme
Court has held that computer records, when properly proved, may
be admissible under the business records exception. See Kettler
& Scott, 248 Va. at 457, 449 S.E.2d at 785-86.
In the present case, however, the Commonwealth did not
produce either a printout of the computer screen data or an
actual record. Instead, Thompson and Kirby merely recited the
information they said they observed on the computer screen.
Relying on Lee v. Commonwealth, 28 Va. App. 571, 507 S.E.2d 629(1998), the Commonwealth argues that we approved this method of
proof when we held that "[a] person who can verify that the
business records are authentic can present the evidence by
testifying about what he saw displayed or by presenting a
printed copy of the display. Either form is admissible as a
business records exception to the hearsay rule." Id. at 577,
507 S.E.2d at 632 (emphasis added).
We are constrained, however, to follow the Supreme Court's
more recent decision in Decipher, Inc. v. iTribe, Inc., 262 Va.
588, 533 S.E.2d 718 (2001), which is contrary to Lee.
Discussing the business records exception to the hearsay rule,
the Court held that "[g]enerally, the hearsay rule precludes a
witness from quoting from, or summarizing the contents of, even
admissible records until they have been received in evidence."
Id. at 595, 533 S.E.2d at 722. This holding is consistent with
the Court's holding in Kettler & Scott that conditions
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"admission of written factual evidence that has a circumstantial
guarantee of trustworthiness" upon "proof that the document
comes from the proper custodian and that it is a record kept in
the ordinary course of business." 248 Va. at 457, 449 S.E.2d at
785-86 (emphasis added). In short, business records are
admitted as an exception to the hearsay rule because they are
regularly prepared and have a guarantee of trustworthiness and
reliability. Id. at 457, 449 S.E.2d at 786.
The evidence proved that the computerized inventory
tracking system can produce a printed document. Here, however,
the Commonwealth sought to rely upon the memory of both
witnesses to deliver the content of the records. The evidence
does not establish that the trustworthiness and reliability of
the evidence can be guaranteed through a recitation of the
witnesses' observation of the displayed data. Therefore, we
hold that the trial judge erred when he did not sustain Baber's
hearsay objections.
Because we hold the trial judge erred in admitting the
hearsay evidence, we need not decide Baber's further contention
that Virginia law does not recognize an "absence of business
entries exception" to the hearsay rule.
D.
The Commonwealth also contends the hearsay issue is moot
because the trial judge "never used the challenged evidence to
convict [Baber]." We disagree.
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In ruling the evidence admissible, the trial judge
necessarily found it was relevant. See Ward v. Commonwealth,
264 Va. 648, 654, 570 S.E.2d 827, 831 (2002). Furthermore, the
trial judge's comment that the computer information was
"material" and "add[ed] something to corroborate" negates the
Commonwealth's suggestion that the issue is moot.
III.
The Commonwealth contends that even if the trial judge
erred, the conviction nevertheless should be affirmed because
the error was harmless. We agree.
The test for non-constitutional harmless error is as
follows:
"If, when all is said and done, the
conviction is sure that the error did not
influence the jury, or had but slight
effect, the verdict and the judgment should
stand. . . . But if one cannot say, with
fair assurance, after pondering all that
happened without stripping the erroneous
action from the whole, that the judgment was
not substantially swayed by the error, it is
impossible to conclude that substantial
rights were not affected. . . . If so, or
if one is left on grave doubt, the
conviction cannot stand."
Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32
(2001) (citation ommitted). An error is harmless if "other
evidence of guilt is 'so overwhelming and the error so
insignificant by comparison that the error could not have
affected the verdict.'" McLean v. Commonwealth, 32 Va. App.
200, 211, 527 S.E.2d 443, 448 (2000) (citation omitted).
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Even without the computer information, the evidence proved
larceny. Bush gave Baber a receipt for the purchase of the
toolbox and placed Sears tape on the toolbox as proof of
payment. Later, when Thompson saw Baber and another man leaving
the store with the generator and asked for the receipt, neither
man had the receipt for the generator. Attached to the
generator was the Sears tape and a receipt for a toolbox. No
evidence proved the men then had the toolbox. Days later, Bush
found a toolbox sitting near the generators.
Baber's guilt is further established by the inconsistencies
in his statements. When Thompson asked for a receipt, Baber
said his wife had the receipt. Later, when Kirby asked for the
receipt in the presence of Baber's wife, Baber said a Sears
employee had it. Finally, although Baber told Thompson that he
bought the generator from the same person who sold him the
toolbox, Bush testified he sold Baber the toolbox but never sold
Baber a generator. Based on the evidence, and absent any
exculpatory evidence, the trial judge was free to conclude Baber
was lying about these events. See Marable v. Commonwealth, 27
Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). Indeed, the
trial judge specifically noted that he considered Baber's
actions to be "a deliberate and very ingenious method of
misleading." The trial judge explained that his decision relied
on the "misleading receipt, an inapplicable receipt . . .
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wrongly placed on the wrong goods. That couldn't have gotten
there any other way."
Nothing indicates that the computer evidence significantly
influenced the trial judge's decision. "[W]e can say, 'with
fair assurance, after pondering all that happened without
stripping the erroneous action from the whole,' that it plainly
appears that [Baber] has had a fair trial and the verdict and
judgment were not substantially affected by . . . [the error]."
Clay, 262 Va. at 261, 546 S.E.2d at 732. Thus, the error was
harmless.
Accordingly, we affirm the conviction.
Affirmed.
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Benton, J., concurring, in part, and dissenting, in part.
I concur in Parts I and II of the majority opinion.
Because I would hold that the error was not harmless, I dissent
from Part III.
The Supreme Court of Virginia has "adopt[ed] the Kotteakos
[v. United States, 328 U.S. 750 (1946),] harmless-error test"
for measuring error under Code § 8.01-678. Clay v.
Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 732 (2001).
Applying that test, the United States Supreme Court recently
held that "the principle of Kotteakos [means] that when an
error's natural effect is to prejudice substantial rights and
the court is in grave doubt about the harmlessness of that
error, the error must be treated as if it had a 'substantial and
injurious effect' on the verdict." O'Neal v. McAninch, 513 U.S.
432, 444 (1995) (citing Kotteakos, 328 U.S. at 764-65, 776).
Moreover, when a trial error has been shown on direct appeal
from a conviction, the government bears the burden of proving
harmlessness under this standard. See O'Neal, 513 U.S. at 437.
Indeed, the Supreme Court of Virginia has held that "error will
be presumed to be prejudicial unless it plainly appears that it
could not have affected the result." Caldwell v. Commonwealth,
221 Va. 291, 296, 269 S.E.2d 811, 814 (1980).
It is important to note, as the United States Supreme Court
has observed, that an "emphasis and perhaps overemphasis, upon
the [concept] of 'overwhelming evidence,'" has the effect of
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clouding the relevant question "'whether there is a reasonable
possibility that the evidence complained of might have
contributed to the conviction.'" Chapman v. California, 386
U.S. 18, 23 (1967) (footnote and citations omitted). Indeed,
the principle is well established that a harmless error analysis
is entirely distinct from a sufficiency of the evidence
analysis. "The inquiry cannot be merely whether there was
enough to support the result, apart from the phase affected by
the error. It is rather, even so, whether the error itself had
substantial influence. If so, or if one is left in grave doubt,
the conviction cannot stand." Kotteakos, 328 U.S. at 765.
Consistent with these principles, the Supreme Court of Virginia
has held that even if "the other evidence amply supports the
. . . verdicts, [error is not harmless when] the disputed
[evidence] may well have affected the . . . decision." Cartera
v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978).
See also Hooker v. Commonwealth, 14 Va. App. 454, 458, 418
S.E.2d 343, 345 (1992) (holding that "a harmless error analysis
. . . [is not] simply a sufficiency of the evidence analysis").
The evidence in this case established that any sales
employee in the store had the authority to sell any item in the
store. The Commonwealth sought to exclude the possibility that
another sales employee sold Baber the generator by proving
through the computerized inventory system no generators were
sold. When admitting the evidence in the record, the trial
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judge noted that the witnesses' testimony about the computer
display was "material" and "verifies the fact that there was no
receipt according to the computer." Furthermore, in announcing
his decision, the trial judge expressly noted that the computer
information was "just adding something to corroborate" the
Commonwealth's evidence. The judge's comment that the evidence
was "not essential" does not render it harmless.
Although other evidence in the record might support the
verdict, "[o]ther evidence of a disputed fact, standing alone,
does not establish that an error is harmless." Hooker, 14
Va. App. at 458, 418 S.E.2d at 345. "'[A] fair trial on the
merits and substantial justice' are not achieved if an error at
trial has affected the verdict." Lavinder v. Commonwealth, 12
Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (quoting Code
§ 8.01-678). The Commonwealth bore the burden of proving Baber
did not purchase the generator. A significant aspect of that
proof was reliance on evidence that none of the sales employees
of the store sold the generator. The Commonwealth used the
testimony of Kirby and Thompson to establish that Sears'
computerized records indicated no generator sales had occurred.
Because this proof was offered to establish a fact not otherwise
proved, it is "highly probable that the error had substantial
and injurious effect or influence in determining the . . .
verdict." Kotteakos, 328 U.S. at 776.
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For these reasons, I would hold that the error was not
harmless, and I would reverse the conviction and remand for a
new trial.
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