Ernest Edward Brummett v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
ERNEST EDWARD BRUMMETT
v. Record No. 0485-94-3 MEMORANDUM OPINION
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA JANUARY 11, 1996
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Glenn L. Berger (Shreve & Berger, on brief),
for appellant.
Robert B. Beasley, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Ernest Edward Brummett appeals his convictions on two
charges of forcible sodomy, one charge of inanimate sexual
penetration, and two charges of aggravated sexual battery. The
charges were based on allegations of numerous sexual acts
committed against W and K, two eleven-year-old girls.
The defendant contends that the trial court erred by
refusing to sustain his pretrial motion that the Commonwealth
disclose copies of the victim's statements to the police,
refusing to admit forensic evidence showing that semen found on a
bedspread was not from him, refusing to admit the full transcript
of his statement to the police to rebut the Commonwealth's use of
part of the statement, and admitting a drawing W made of a
vibrator. We hold that the trial court erred by not requiring
the Commonwealth to provide the defendant with W's statements to
the police, and by not admitting the forensic evidence which
proved that the semen was not from him. The errors were not
harmless. Accordingly, we reverse the defendant's convictions
and remand for such further proceedings as the Commonwealth may
be advised.
I. Pretrial Discovery
The defendant filed a pretrial discovery motion requesting
copies of three statements W gave police and one statement K gave
police. The Commonwealth's attorney provided the defendant a
summary of "favorable evidence and statements," which was a
summary of the girls' statements, but did not allow the defendant
to examine the victim's verbatim statements. After reviewing
transcripts of the verbatim statements in camera, the trial court
ruled that the statements were not exculpatory and overruled the
defendant's motion to obtain the statements.
II. Facts
The Commonwealth relied on the testimony of W and K to prove
the charges. No medical or other physical evidence corroborated
the victims' testimony.
W's mother worked for the defendant for nine months
beginning in March of 1987. She left her job with the defendant
around December 1988 or January 1989, but in March 1988 the
defendant had agreed to help her care for W. From March 1988
until June 30, 1993, W regularly stayed with the defendant after
school while her mother was at work, during which time she spent
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several nights at the defendant's home.
W testified that beginning shortly before her sixth birthday
in 1987 and continuing until she filed a complaint on
July 1, 1993, the defendant committed numerous sexual assaults
against her. Prior to her sixth birthday, the defendant
attempted to "french kiss" her, and approximately two months
after that incident, he attempted to remove her pants. About
five months later, the defendant exposed his penis to W, removed
her pants, and rubbed her vagina with his fingers. The defendant
engaged in similar conduct "once or twice a week" thereafter.
Sometimes he touched her genitals or fondled her breasts. Other
times, he placed his penis on her genitals and ejaculated, or
placed "it up to [her] mouth." The defendant also tied "W" to a
chair with rope and placed his penis between her legs on several
occasions. W testified that the defendant never penetrated her
vagina with his penis.
W further testified that when she was seven or eight years
old, the defendant began to place his penis in her mouth. Also,
when W was nine, the defendant began to lick her genitals, and
when she was ten, he placed a vibrator in her rectum and vagina.
In addition, the defendant showed W movies containing graphic
sexual material, and on one occasion, performed on W a sexual act
depicted in one of the movies.
On June 30, 1993, W and her friend K spent the night at the
defendant's house and swam in his pool. W testified that the
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defendant asked the girls if they wanted to go "skinny dipping"
with him, which they refused. When K went inside the house to
use the bathroom, the defendant grabbed W, removed her bathing
suit, and placed his penis between her legs. After K returned,
the girls swam for a few more minutes before leaving the pool. W
saw the defendant attempt to remove K's suit as he helped her get
out of the pool.
Later that evening, W and K were in the defendant's living
room. W was lying on a mattress on the floor and K was lying on
a couch. W testified that the defendant came into the room and
that she heard him whispering to K. The defendant then
approached W and touched her breasts and genitals as she lay
under some covers on the mattress. W kicked the defendant and he
went back to K, where he whispered in K's ear and pulled his
pants down, exposing his penis to K. K kicked the defendant, but
he was able to remove her pants. Although W did not see anything
else, she "heard somethin[g] tear," and heard the defendant tell
K, "you know you want it." The defendant came back to W and
"tried to mess with [her]" again, but she kicked him and he left
the room.
After the defendant left, the girls went outside and K told
W that the defendant "had been messing with her . . . all the
times that [she had visited his house]." The girls decided to
run away and went inside the house to gather some items. They
walked to K's babysitter's house and called K's parents.
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In the course of her testimony, W stated that on several
occasions, W and K had showered at the defendant's house and that
he had reached into the shower and touched their private parts.
She also claimed that she witnessed the defendant attempt to
place his penis between K's legs on one occasion.
K testified that she began visiting W at the defendant's
home in the spring of 1993. She claimed that the defendant
touched her and W on the chest and between their legs while they
showered, that he touched their private parts while they swam in
the pool, and that he showed them "dirty movies." K also
testified that on June 30, 1993, the defendant grabbed her
between the legs while she was in the pool. Later that night, he
attempted to remove her shorts while she lay on the couch in his
living room, and as a result he ripped her underwear. He also
asked her if he could "put [his] ``thing' in [her]."
The defendant denied all the allegations. He offered the
testimony of two forensic experts who testified to the lack of
physical evidence supporting the allegations. In addition, he
offered the testimony of two of W's teachers, who stated that
they had not observed any problems with W and that she appeared
to have a normal relationship with the defendant. One of the
teachers testified that she had visited the defendant and W at
the defendant's home and had not noticed any problems between the
defendant and W.
T, the defendant's seven-year-old nephew, testified that W
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had pulled his pants down and climbed on top of him two weeks
before the complaint was filed against the defendant. The
defendant testified that he discovered the children in this
position and he admonished them. T's father confirmed that the
defendant had reported this incident to him. According to the
defendant, W had fabricated the allegations of sexual assault
against him because she feared the defendant would tell her
mother about the incident with T.
During the trial, the court refused to allow the defendant
to introduce results from DNA tests which showed that semen
stains found on a bedspread recovered from the defendant's home
were not from the defendant. The trial court also refused to
allow the defendant to admit the full text of a statement he gave
to the police in order to rebut the Commonwealth's use of a
portion of that statement. Furthermore, the court, over the
defendant's objection, admitted a drawing W made of the vibrator
that she claimed the defendant used on her.
III. The Statements
An accused has no general right to discovery in criminal
cases. Stotler v. Commonwealth, 2 Va. App. 481, 483, 346 S.E.2d
39, 40 (1986). Nonetheless, the prosecution must disclose all
evidence favorable to a defendant and material to either guilt or
punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); MacKenzie
v. Commonwealth, 8 Va. App. 236, 243, 380 S.E.2d 173, 177 (1989).
When a prosecutor is uncertain about whether evidence is, or
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will prove to be, exculpatory, the prosecutor withholds
disclosure of that evidence at the risk of ultimately wrongfully
depriving an accused of favorable evidence to which the accused
is constitutionally entitled.
Where the prosecutor is in doubt about whether evidence is
exculpatory, the prosecutor may submit the evidence to the trial
judge for an in camera review in order to determine whether the
evidence must be disclosed. Cherricks v. Commonwealth, 11 Va.
App. 96, 102, 396 S.E.2d 397, 400 (1990). Nevertheless, at that
juncture, the trial judge, who probably is not as well informed
about the issues in the case as the attorneys, may not be able to
ascertain whether the requested material is or will be germane to
determining guilt or punishment. However, evidence is
exculpatory under Brady and, therefore, is discoverable if the
defendant could have used it for impeachment purposes. United
States v. Bagley, 473 U.S. 667, 676 (1985); Robinson v.
Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986);
MacKenzie, 8 Va. App. at 243, 380 S.E.2d at 177.
The defendant claims that W's statements to the police were
exculpatory because they were inconsistent with each other and
with testimony elicited at trial. These inconsistencies were
exculpatory and material because, according to the defendant, the
Commonwealth's case depended almost exclusively upon W's
credibility. For example, the defendant notes that at one point
during W's statements she indicated that the defendant had never
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placed his penis in her mouth, which would have exonerated the
defendant on the sodomy charge if believed by the jury.
Therefore, the defendant contends that this is but one example of
how his right to a fair trial was compromised by the
Commonwealth's failure to provide him with verbatim copies of the
statements.
W's statements contained several other inconsistencies.
Most significantly, W's statements to the police that the
defendant forced her to engage in fellatio were inconsistent. On
July 1, 1993, W gave the following responses during questioning
by Detective D.L. Goss:
Q. In the last few years? Has [the defendant] ever
asked you to put his [penis] in your mouth?
A. Yes.
Q. You ever done that?
A. No. The same thing as that. I tried not to, but he
would take and he'd push my head down there toward it,
and I'd would [sic] be jerking my head away, when, when
he'd put my head back, and sometimes I'd jerk it away,
and it popped, my neck would pop.
* * * * * * *
Q. . . . And he's never made you put it, actually put
it in your mouth?
A. No.
* * * * * * *
Q. But you never had, never have had his [penis] in
your mouth?
A. Not, not except the times there when he would push
it on me. He would push it in my mouth.
Q. Then you have had his [penis] in your mouth?
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A. Yes.
Q. What did you do with it?
A. I would try to pull back, and, and it was "yucky
tasting," and everything, and I tried to get, pull
back, and he would--
On July 9, Detective Nancye Snow took a second statement from
"W":
Q. O.K. Ah, another important question. Did he put
his penis in your mouth?
A. Yes, but I didn't want him to, and--
Q. Well, honey, we know you didn't want him to. We
just have to have the facts that he did. You know, we
know you were unwilling, but you are not on trial. We
just have to have all the facts, and get everything
lined up. O.K. Ah, the first time he did this, how
old were you?
A. I think I was about, I was getting to turn 5
[unintelligible]--
Q. So somewhere around October, before your 5th
birthday, he made you take his thing in your mouth?
A. Yes.
* * * * * * *
Q. O.K. Ah, awhile ago, I asked you if he held you
down when he ah, put his penis in your mouth. Did he
ever hold your head?
A. Yes, he--
Q. Make you move your head in a certain way, or
something like this?
A. He would take, like sometimes he would be standing
up, and he would make me get on my knees, and he would
hold the back of my hand up to his thing, and stick it
in my mouth. And he would tell me to try to take out
his thing, and I would try to, I'd be trying to get it
out of my mouth, and he would take and hold his thing,
and push some more into my mouth.
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Although W asserted in each of her statements that the defendant
had forced her to commit fellatio, her initial negative response,
given on July 1, to the question of whether the defendant placed
his penis in her mouth was crucial evidence to the defendant's
case, not only for impeachment purposes, but also for supporting
his claim that he did not commit the act. See Bowman v.
Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 112 (1994)
(noting the defendant's claim that the undisclosed police report
"called [the police officer's] credibility into question" and
supported the defendant's claim of misidentification).
W's statements to the police on July 1 and July 9 were also
inconsistent with her trial testimony about what happened on the
night of June 30, 1993. In her pretrial statements, W claimed
that she was asleep on a mattress in the defendant's living room,
and that he woke her when he rubbed her private parts. W stated
that she "got away from" the defendant and checked on K, who was
lying on a couch in the living room. K then asked W to accompany
her outside, and once outside, K told W that the defendant "had
been doing things to her, like rubbing her [private parts], and
feeling her breasts, and stuff like that." At trial, however, W
testified that she was awake before the defendant came over to
where she was lying and began to rub her.
Q. Okay. And then did the defendant come in the room?
A. Yes sir, he came in the room, and he went over to
[K], and I heard a whispering, and then after he went
over to [K], he came over to me, and he took and
reached up under the covers, and tried to rub me
between my legs --
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W also testified that after the defendant left her alone she saw
him go back to where K was, take out his penis, and attempt to
pull down K's pants. W claimed that she heard K tell the
defendant to stop and that the defendant replied, "Oh, you know
you want it." In her pretrial statements, W did not mention
witnessing the defendant do anything to K or hearing an exchange
between K and the defendant.
There were other inconsistencies between W's testimony at
trial and the statements she gave the police. At trial, she
testified that the defendant threatened to shoot her mother, her
father, and himself if she told anyone about his conduct. He
also told her that even if he did not kill her family, her mother
would go to jail and she would be placed in a foster home.
However, in her pretrial statements W did not mention that the
defendant had threatened to kill her parents; she mentioned only
that he told her that she and her mother would go to jail.
Furthermore, W did not mention in any of the three pretrial
statements that the defendant had reached into the shower and
fondled her and K. Moreover, W had told Detective Snow that the
defendant had committed cunnilingus "[o]nce or twice," while she
testified at trial that this conduct occurred approximately
twenty times.
During the in camera review of W's statements, the trial
judge was not in a position to know that W's statements would be
inconsistent with her testimony. Nonetheless, it was apparent
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that W's credibility would be crucial to the Commonwealth's case
and that the defendant's ability to effectively impeach W in the
event her testimony was inconsistent with the statements would be
hampered without access to the verbatim statements. Moreover,
during the in camera review the exculpatory nature of the
pretrial statements with respect to the fellatio charge was
apparent. And although the Commonwealth's attorney may have
acted in good faith by submitting the statements for an in camera
review, the Commonwealth must accept the risk that the statements
would prove to be exculpatory and, therefore, material to which
the accused would be entitled. See Cherricks, 11 Va. App. at
102, 396 S.E.2d at 401.
W's statement that the defendant never placed his penis in
her mouth was highly relevant to determining W's credibility and,
therefore, was essential to the defendant's ability to impeach W.
See Robinson, 231 Va. at 150, 341 S.E.2d at 164 (holding that
"[t]he impeachment value alone makes the [evidence]
exculpatory"). Similarly, W's statements that were inconsistent
with her trial testimony were relevant to impeach her
credibility. "When the ``reliability of a given witness may well
be determinative of guilt or innocence,' evidence affecting the
credibility of that witness should not be concealed by the
prosecution." Burrows v. Commonwealth, 17 Va. App. 469, 472, 438
S.E.2d 300, 303 (1993) (quoting Napue v. Illinois, 360 U.S. 264,
269 (1959)). Accordingly, the trial court erred by holding that
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W's statements were not exculpatory and overruling the
defendant's motion to obtain a verbatim copy of the statements.
Even though the statements were exculpatory, the defendant
is not entitled to a new trial unless the statements were
material. Humes v. Commonwealth, 12 Va. App. 1140, 1143, 408
S.E.2d 553, 555 (1991). "[E]vidence is material only if there is
a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. A ``reasonable probability' is a probability
sufficient to undermine confidence in the outcome." Bagley, 473
U.S. at 682. 1
Because the victims' testimony was the only evidence
supporting the charges, W's credibility was a crucial factor for
the jury in reaching its verdict. Accordingly, any evidence
1
The standard of materiality for review of discovery
violations is the same for a direct appeal as it is for a
collateral attack. White v. Commonwealth, 12 Va. App. 99, 102,
402 S.E.2d 692, 695, aff'd, 13 Va. App. 284, 410 S.E.2d 412 (1991)
(en banc). That standard is the same whether or not the trial
court has conducted an in camera review of the material. See
Brooks v. United States, 516 A.2d 913, 917 (D.C. 1986) (applying
Bagley standard in a direct appeal when the trial court had
conducted an in camera inspection of the requested material);
Williams v. State, 544 So. 2d 782, 791-92 (Miss. 1987) (same);
State v. Allen, 590 N.E.2d 1272, 1275, 1277-78 (Ohio Ct. App.
1990) (same); State v. Benn, 845 P.2d 289, 298, 300-01 (Wash.
1993) (same). But see State v. Laurie, 653 A.2d 549, 552 (N.H.
1995) (holding that under the State Constitution, once the
defendant shows that the prosecution "knowingly withheld"
exculpatory evidence, the burden shifts to the prosecution "to
prove beyond a reasonable doubt that the undisclosed evidence
would not have affected the verdict"); State v. Marshall, 586 A.2d
85, 192 (N.J. 1991) (rejecting Bagley standard in favor of
"harmless constitutional error" standard when the defendant
specifically requests information).
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tending to cast doubt on her credibility was highly relevant to
the defendant's claim that W was fabricating the charges and that
he did not commit the offenses. The Commonwealth's refusal to
disclose W's statements prevented the defendant from being able
to effectively cross-examine W. "A factor in determining the
materiality of undisclosed information is ``[a]ny adverse effect
that the prosecutor's failure to respond might have had on the
preparation and presentation of the defendant's case.'" White,
12 Va. App. at 103, 402 S.E.2d 692, 695 (citing Bagley, 473 U.S.
at 683), aff'd, 13 Va. App. 284, 410 S.E.2d 412 (1991) (en banc).
The Commonwealth contends that any error in not requiring
the Commonwealth to disclose W's statements was harmless because
whatever inconsistencies W's statements may have contained had a
minimal effect on the trial outcome when all of the evidence is
considered. According to the Commonwealth, W gave detailed
accounts of numerous instances of sexual abuse, and for the most
part, her pretrial statements were consistent with her testimony.
In addition, K's testimony corroborated W's allegations about
what took place on June 30, 1993.
The Commonwealth is correct that K's testimony largely
corroborated W's version of the June 30, 1993 events. As to the
other allegations, however, the Commonwealth's case depended
solely on W's testimony. Accordingly, the jury's findings
depended entirely upon W's credibility, and her pretrial
statements would have been critical to evaluating her
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credibility.
W's pretrial statements were particularly significant with
respect to the sodomy charges involving fellatio and cunnilingus.
The Commonwealth contends that when W's pretrial statement that
the defendant never had his penis in her mouth is viewed in
context, it is clear that she was "saying that she never
voluntarily placed the defendant's penis in her mouth," but that
he forced her to do so. Although the Commonwealth offers a
reasonable interpretation for W's inconsistent statements,
whether to accept the explanation and believe W's statements "was
wholly within the province of the jury." Keener v. Commonwealth,
8 Va. App. 208, 214, 380 S.E.2d 21, 25 (1989). Credibility was
the singular decisive issue in the case. The Commonwealth's
failure to disclose W's statements precluded the defendant from
presenting the prior inconsistent statement to the jury, and
"prevented [him] from effectively using the [statements] for
purposes of challenging [W's] credibility." Bowman, 248 Va. at
134, 445 S.E.2d at 112; see Burrows, 17 Va. App. at 472, 438
S.E.2d at 303 (reversing the defendant's convictions because the
Commonwealth failed to disclose the criminal record of a witness
when the record indicated "a real possibility of bias or a lack
of credibility for that witness").
In addition, the Commonwealth's failure to disclose W's
statements prevented the defendant from effectively impeaching W
as to her claim that the defendant committed cunnilingus.
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Although W told Detective Snow that the defendant had committed
cunnilingus one or two times, she testified at trial that this
conduct occurred "[m]aybe about twenty times." This was a
significant variance that the defendant was unable to probe upon
cross-examining W. In fact, the only question regarding the
cunnilingus charge that defense counsel asked W was why she did
not tell Detective Goss during her initial statement that the
defendant had put his mouth on her vagina. Cf. Bowman, 248 Va.
at 134, 445 S.E.2d at 112 (holding that late disclosure of
exculpatory information did not prevent the defendant from
challenging the witness's credibility).
Because W's testimony was the only evidence supporting the
charges of fellatio and cunnilingus and because there were
significant differences between her statements and her testimony,
there is a reasonable probability that the jury would have found
that the defendant did not commit these offenses if W's
statements had been disclosed to the defendant. Moreover, if the
jury, after considering W's statements, had found that the
defendant did not commit fellatio or cunnilingus on W, it might
also have concluded that W and K fabricated the other
allegations. Thus, the inconsistencies with respect to the two
charges of forcible sodomy were material to the defendant's guilt
2
on all charges. And even though the jury could have found the
2
The inconsistencies in W's statements and testimony with
respect to what she saw and heard in the defendant's living room
on June 30, 1993, as well as her failure to mention in the
statements that the defendant had threatened her parents are not
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defendant guilty of the other charges, finding that the defendant
did not commit fellatio and cunnilingus may well have mitigated
his punishment. See White, 12 Va. App. at 105, 402 S.E.2d at
696; Keener, 8 Va. App. at 216, 380 S.E.2d at 26.
Although the charges here involve shocking and disturbing
conduct, they are charges that are easily made and difficult to
defend. In a case where credibility is the most important issue,
withholding evidence that has significant impeachment value
deprived the defendant of his due process right to a fair trial.
Accordingly, we hold that the statements were material to the
defendant's guilt and punishment and we reverse the defendant's
convictions.
IV. The DNA Evidence
Although the Commonwealth's failure to disclose W's pretrial
statements requires reversal of the convictions, those issues
which may arise on remand must be addressed. First, the
defendant contends that the trial court erred by excluding DNA
evidence which would have proven that the defendant was not the
source of a seminal stain found on a bedspread taken from his
house.
At trial, W testified that some of the sex acts had taken
sufficient alone to undermine confidence in the result of the
trial. Nonetheless, these inconsistencies did possess impeachment
value, and when combined with the inconsistencies in W's
allegations of fellatio and cunnilingus, support the conclusion
that there was a reasonable probability that the jury would have
reached a different result if the defendant had been able to
impeach W with her statements.
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place on a particular bedspread, and that the defendant had
ejaculated on the bedspread. This bedspread was turned over to
the police. Out of the presence of the jury, the defendant
proffered testimony by Elizabeth Bush, a forensic scientist, and
Robert Scanlon, a DNA specialist. Bush testified that she had
identified a seminal stain on the bedspread and delivered the
stain to Scanlon for analysis. Scanlon testified that his tests
excluded the defendant as a possible donor of the stain. The
trial court held that this DNA evidence was irrelevant.
Evidence is relevant and admissible that tends "to cast any
light upon the subject of the inquiry . . . [or] add force and
effect to a party's defense" so long as it does not violate any
rules of admissibility. Cash v. Commonwealth, 5 Va. App. 506,
510, 364 S.E.2d 769, 771 (1988) (citations omitted). The
defendant did not seek to introduce the evidence merely to show
that other persons had ejaculated on the bedspread, but rather to
exclude him as the person who had deposited the semen. The DNA
evidence was, at least, minimally relevant because it tended to
exclude the defendant as having deposited semen on the bedspread
where W said he had ejaculated. Failure to admit relevant
evidence is presumed prejudicial "unless it clearly appears from
the whole record that such evidence, if it had been admitted,
could not have changed the result." Id. at 511, 364 S.E.2d at
772 (quoting Speller v. Commonwealth, 2 Va. App. 437, 443, 345
S.E.2d 542, 546-47 (1986)). On retrial the evidence should be
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admitted.
V. The Defendant's Statement
As rebuttal evidence, the Commonwealth introduced a portion
of the defendant's statement to Detective D.L. Goss in which the
defendant characterized W as a "sweet person." In addition,
Detective Goss testified that the defendant did not mention the
incident between W and T in his statement. The defendant
contends that the trial court erred by refusing to admit his
entire statement into evidence. According to the defendant, the
entire statement was relevant because it established the context
in which the defendant characterized W as a "sweet person," and
established the context for the defendant's failure to mention
the incident between W and T.
A statement proffered by the party who made it is generally
inadmissible hearsay unless it falls within an exception. King
v. Commonwealth, 18 Va. App. 57, 59, 441 S.E.2d 704, 705 (1994).
"A defendant may introduce his or her own prior consistent
statements when the prosecution suggests that the defendant has a
motive to falsify, alleges that the defendant's testimony is a
recent fabrication, or attempts to impeach the defendant with a
prior inconsistent statement." Id.
Although the defendant's characterization of the victim as a
"sweet person" has little or no relevance, to the extent that the
statement tends to impeach the defendant's characterization of
W's testimony as false, the context in which the statement was
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made is equally relevant to explain what was meant by W being a
"sweet person." Accordingly, if the defendant's prior statement
that W is a "sweet person" is admitted on remand, the context in
which it was made is admissible.
VI. The Drawing
The trial court allowed the Commonwealth to introduce a
drawing by W of the vibrator the defendant allegedly used.
According to the defendant, the trial court erred by admitting
the drawing because it was nonverbal hearsay offered to prove the
truth of W's description of the vibrator. W testified and the
sketch or drawing that she previously made is not hearsay.
Harrison v. Commonwealth, 9 Va. App. 187, 189-90, 384 S.E.2d 813,
815 (1989). In Harrison, the Court held that a police artist's
composite sketch was not hearsay because it was like a
photograph. Id. We find no distinction between the sketches.
Accordingly, the trial court did not err by admitting it.
We reverse the defendant's convictions and remand the case
for further proceedings if the Commonwealth be so advised.
Reversed and remanded.
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