Brown v. Commonwealth

BENTON, Judge.

A jury convicted Keith Floyd Brown of statutory burglary, rape, and two counts of forcible sodomy. Brown contends that the trial judge erred in ruling that two statements offered by the defense were hearsay and prohibiting their introduction at trial. We agree that the statements were not hearsay. Because the errors were not harmless, we reverse the convictions and remand for a new trial.

I.

The complainant testified at trial that a man entered her apartment early in the morning of June 25, 1994, beat her, sexually assaulted her, and raped her. She left her apartment a short time later and told the police that a man who had raped her was asleep in her apartment. The police arrested Brown at the complainant’s apartment that morning. The complainant denied ever having seen Brown before he broke into her apartment.

Brown told the police after his arrest that he had consensual sexual intercourse with the complainant. At trial, Brown testified that he and the complainant were acquaintances and that she admitted him to her apartment. He denied using any force or violence upon the complainant.

Two defense witnesses testified that Brown and the complainant knew each other prior to the incident. One of the witnesses, Charles Gentry, testified that he observed Brown and the complainant together on at least two or three occasions. The trial judge admitted evidence that Gentry observed Brown and the complainant conversing but refused to allow Gentry to testify that the two were discussing the trading of sex for cocaine.

The trial judge also refused to allow a police officer’s testimony that Brown “asked [the officer] twice if Peggy [, the complainant,] knew he was [at the police station].” The trial judge ruled the statement was hearsay. During Brown’s testimony, the trial judge overruled the Commonwealth’s objection and allowed Brown to testify, however, that he “asked the officer did [the complainant] know [he] was at the police station.”

Brown appeals the trial judge’s refusal to admit Gentry’s testimony as to the content of the overheard conversation and the police officer’s testimony concerning the question Brown asked at the police station. The Commonwealth contends that defense counsel waived objection to the admission of each statement, that the trial judge correctly ruled that the statements were hearsay, and that the trial judge’s refusal to admit the statements, if erroneous, was harmless error.

II.

“Hearsay is a statement, other than one made by the declarant while testifying at trial, which is offered to prove the truth of the matter asserted.” Clark v. Commonwealth, 14 Va.App. 1068, 1070, 421 S.E.2d 28, 30 (1992). “Unless it is offered to show its truth, an out-of-court statement is not subject to the rule against hearsay and is admissible if relevant.” Church v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 825 (1985).

At trial, defense counsel sought to introduce testimony that Gentry “ha[d] seen [Brown] and [the complainant] together on more than one occasion ... [and that] on one occasion, he overheard a conversation between [Brown] and [the complainant] involving trading sex and cocaine that took place in the area of Gibson’s store.” The Commonwealth objected to the testimony on the ground that the rape shield law had not been satisfied. Ruling that the fact, but not the content, of the conversation was admissible, the trial judge stated:

Gentry is not going to offer evidence with regard to sexual conduct, but a conversation....

This witness [, the complainant,] was never asked and did not testify so as to deny about any conversation with regard to trading sex for drugs, so that conversation cannot be offered for impeachment purposes because it is hearsay, and she has not been impeached on that point. But I will permit [Gentry] to testify about having observed, if the person that this woman that [defense counsel] referred to is the victim, clearly this witness should be permitted to testify with regard to seeing the two in the presence of the other prior to June 25.

But as to the conversation, it is otherwise hearsay, and she has not, she did not deny such a conversation existed, so she can’t be impeached on that point.

The Commonwealth claims that Brown waived his objection to this issue because he never specifically argued that the testimony was not hearsay.

Arguments over the admissibility of Gentry’s testimony cover approximately ten pages of the record. Brown proffered the testimony as admissible evidence and urged the trial judge to admit the testimony because it related “just a conversation between the two parties.” In considering whether the testimony was admissible, the trial judge discussed the rape shield statute and raised the issue of hearsay. Thus, the trial judge was alerted to the possibility of error and had the opportunity to take corrective actions. Martin v. Commonwealth, 13 Va.App. 524, 530, 414 S.E.2d 401, 404 (1992).

Brown’s counsel consistently maintained that the testimony was admissible. Furthermore, Code § 8.01-384 has eliminated the requirement that counsel make formal exceptions to rulings or orders of the trial judge. “Requiring [Brown] to ‘object’ after this refusal would, in effect, recreate the requirement of noting an exception to a final adverse ruling of the trial judge.” Martin, 13 Va.App. at 530, 414 S.E.2d at 404. Counsel’s argument was sufficient as an objection to preserve the issue for appeal.

The Commonwealth also asserts that defense counsel conceded the issue by stating, “I see what your Honor is saying.” We disagree. The record discloses that counsel’s remark was in response to the trial judge’s question whether a different statement by a different witness was substantive evidence and could be impeached.

Whether the content of the proffered conversation is hearsay depends upon the evidentiary purpose for introducing the statements. “If the court can determine, from the context and from the other evidence in the case, that the evidence is offered for a ... purpose [other than to establish the truth of the facts asserted], the hearsay rule is no barrier to its admission.” Manetta v. Commonwealth, 231 Va. 123, 127, 340 S.E.2d 828, 830 (1986). Brown’s defense rested upon proving that he and the complainant knew each other and had consensual sexual intercourse. In offering the evidence, Brown’s counsel stated that the purpose of Gentry’s testimony was to prove that Brown was well acquainted with the complainant.

Gentry’s testimony was offered as evidence to prove the fact that the statements about trading sex for cocaine were made. Thus, it is not hearsay. See Manetta, 231 Va. at 127-28, 340 S.E.2d at 830. Whether the parties were speaking the truth when they discussed trading sex for cocaine is not at issue. The truth or falsity of their out-of-court statements is not important. The mere fact that they had the conversation is what is important. Out-of-court statements are not hearsay when offered merely to show that the conversation occurred. Id.

Conceding that the fact of the conversation is admissible but arguing that the content is inadmissible, the Commonwealth states that the “offer of sex for crack cocaine no more proves a prior relationship between parties than any other conversation.” That argument addresses the relevance of the evidence, not whether it is hearsay. Certainly, the fact that Brown and the complainant had talked to each other in public before the alleged sexual assault is relevant because it tends to prove that they knew each other.

However, the Commonwealth’s argument fails to recognize that both strangers and acquaintances engage in conversations and that the content of the conversation may tend to establish the fact of the acquaintance. For example, if the witness had testified that he only overheard one of the parties ask, “Can you give me directions to the nearest bus station?,” then the content of the conversation would have tended to prove that the individuals did not know each other. Conversely, testimony that the individuals discussed trading sex for cocaine would have tended to' prove that the individuals had more than a casual acquaintance. In introducing Gentry’s testimony, Brown was seeking to prove not only that the individuals had spoken to each other but also that they had a more substantial acquaintance.

Thus, the content of the conversation Gentry overheard “was not hearsay, but was admissible as circumstantial evidence tending to establish the probability of a fact in issue.” Church, 230 Va. at 212, 335 S.E.2d at 825. “Any fact, however remote, that tends to establish the probability or improbability of a fact in issue is admissible.” Horne v. Milgrim, 226 Va. 133, 139, 306 S.E.2d 893, 896 (1983). Gentry’s testimony, if believed by the jury, would have tended to prove an element of Brown’s defense.

III.

Brown also contends that the trial judge should have allowed a police officer’s testimony that Brown “asked [the officer] twice if Peggy [, the complainant,] knew [Brown] was here.” The trial judge sustained the Commonwealth’s hearsay objection. When Brown’s counsel stated, “I don’t think it is hearsay,” the trial judge ruled, “[o]bjection sustained. It is hearsay. I note your objection.”

For a statement to be considered hearsay, the statement must contain an assertion of fact. “If a statement is offered for any purpose other than to prove the truth or falsity of the content of the statement, such as to explain the declarant’s conduct or that of the person to whom it was made, it is not objectionable as hearsay.” Hamm v. Commonwealth, 16 Va.App. 150, 156, 428 S.E.2d 517, 521 (1993). “According to the very definition of hearsay, an inquiry [or question] is not an assertion and therefore does not constitute hearsay.” Bolen v. Paragon Plastics, Inc., 754 F.Supp. 221, 225 (D.Mass. 1990). Accord United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir.1990); State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965, 971, cert. denied, — U.S. —, 116 S.Ct. 575, 133 L.Ed.2d 498 (1995); Washington v. State, 87 Md.App. 132, 589 A.2d 493, 495 (1991).

In determining Virginia law, the Supreme Court of Virginia has held that “[t]he rule against hearsay prohibits ... the admission of extra-judicial statements ‘only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.’ ” Church, 230 Va. at 211-12, 335 S.E.2d at 825 (citation omitted)(emphasis added). The decision in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949), does not compel a different result because it decided a different evidentiary issue under federal law. The Court summarily concluded that statements admitted in evidence at a federal conspiracy trial were hearsay and held that because the statements were not made in furtherance of a conspiracy they were improperly admitted by the trial judge on that ground. Id. at 442-43, 69 S.Ct. at 717-18.

Likewise, the decision in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), based on the constitutional right to confrontation, is not dispositive of the hearsay issue. In Dutton, the Court assumed without discussion that the statements were hearsay. However, the appellant in Dutton argued “only that the hearsay exception applied by [the State of] Georgia [was] constitutionally invalid because it [did] not identically conform to the hearsay exception applicable to conspiracy trials in the federal courts.” Id. at 80, 91 S.Ct. at 215. The Supreme Court rejected that argument and held that “a long-established and well-recognized rule of state law ... [does not] violate the Constitution merely because it does not exactly coincide with the hearsay exception applicable in the decidedly different context of a federal prosecution for the substantive offense of conspiracy.” Id. at 83, 91 S.Ct. at 217. These federal cases do not change the Virginia rule that an oui>of-court statement, which is not offered to show its truth, “is not subject to the rule against hearsay and is admissible if relevant.” Church, 230 Va. at 212, 335 S.E.2d at 825-26.

The trial judge prohibited the police officer from stating that Brown asked him if the complainant knew he was at the police station. Nothing within the question contains an assertion of fact. The truth or falsity of Brown’s question to the officer is not at issue. See Hamm, 16 Va.App. at 156, 428 S.E.2d at 521. Therefore, the question is not barred by the hearsay rule. Accordingly, we need not address Brown’s alternative argument that even if the statement is hearsay, it is admissible under the state-of-mind exception.

IV.

Brown sought to introduce both statements to prove that he was acquainted with the complainant before the morning of June 25. If the trial judge had not barred the evidence and the jury found Gentry and the police officer to be credible witnesses, the jury would have had a basis upon which it could have found that the complainant lied concerning her relationship with Brown. Because the complainant and Brown agreed that sexual relations occurred but differed on whether the acts were consensual, the credibility of each “was paramount in determining the ultimate issue of guilt or innocence.” Evans-Smith v. Commonwealth, 5 Va.App. 188, 210, 361 S.E.2d 436, 448 (1987).

The error was not harmless. “ ‘[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)(en banc)(quoting Code § 8.01-678). Although the Commonwealth introduced physical evidence of disarray in the apartment and the complainant’s injuries as proof of the sexual offenses, the question of rape or consent ultimately rested upon the jury’s determination of credibility. It is well settled that the credibility of witnesses, the weight accorded witnesses’ testimony, and the inferences to be drawn from proven facts are matters that are within the province of the fact finder. Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190,193 (1986).

Furthermore, a harmless error analysis is not merely a sufficiency of the evidence analysis. Hooker v. Commonwealth 14 Va.App. 454, 458, 418 S.E.2d 343, 345 (1992). The evidence in this case was disputed. Even if “the other evidence amply supports the jury’s verdicts, [error is not harmless when] the disputed testimony may well have affected the jury’s decision.” Cartera v. Commonwealth 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978). Where, as here, the trial judge excludes evidence that tends to support the defendant’s theory of the case, that error cannot be cured merely by weighing the merits of the Commonwealth’s evidence. The harmful error lies in improperly denying the defendant an opportunity to put before the jury evidence to rebut the Commonwealth’s evidence.

Moreover, the critical issue in this case had to be resolved by the jury’s determination of the credibility of the parties. If the jurors had been given the opportunity to hear the prohibited testimony, they may have resolved the credibility conflict in Brown’s favor and accepted his version of the events. Thus, we cannot “conclude, without usurping the jury’s fact finding function, that, had the error[s] not occurred, the verdict would have been the same.” Barrett, 231 Va. at 107, 341 S.E.2d at 193.

We reverse the convictions and remand the case to the circuit court for retrial if the Commonwealth be so advised.

Reversed and remanded.