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Just Because I Heard You Say It Doesn’t Make it Hearsay

by | Oct 2, 2021 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

The Court of Appeals released its first published opinion of the new “term” on Tuesday – yes, I know that the appellate court’s in Virginia don’t really have “terms” because they never go into recess, but for so long as memory serves, the appellate bar – and even the courts themselves, have informally recognized a summer hiatus followed by a new appellate “year” starting in September, thus getting a jump of the US Supreme Court by a month.

Caine Calif Davis v. Commonwealth of Virginia deals with hearsay.  Or rather, it doesn’t.  Davis was charged with numerous offenses, the most serious being first degree murder and, as often happens when there are multiple felonies, a conspiracy to commit said murder.  During his trial on this offense, the Commonwealth sought to introduce evidence of the conspiracy in the form of certain things said by an alleged co-conspirator, and Davis naturally objected that as the speaker of the words was not going to testify and, thus, would not be subject to cross-examination, the evidence was hearsay.  The Commonwealth responded that the words were uttered by a co-conspirator and, thus, fell within a recognized exception to the hearsay rule as being relevant to prove the conspiring of Davis and the out-of-court declarant.

The circuit court ultimately struck the conspiracy charge as not supported by the Commonwealth’s evidence.  When Davis then asked that the court also strike the evidence offered with respect to that charge – i.e. the words spoken by no longer alleged co-conspirator – the court declined to do so.  Ah ha!  It was hearsay without an exception and not subject to cross examination – anyone familiar with the Virginia/US Supreme Court series of cases of Benjamin Lee Lilly is anticipating an appeal and a swift reversal (or at least a lengthy analysis of why the error was harmless beyond a reasonable doubt).

But in the Court of Appeals opinion there is nary a mention of Lilly nor any other Sixth Amendment Confrontation Clause jurisprudence.  Why?  Because the Court of Appeals finds that there was no “hearsay” admitted in the trial.  Wait . . . What?  The circuit court overruled the objection to hearsay, didn’t it?

Yes.  Yes it did.  But as the Court of Appeal rightly points out, just because something is spoken (or written or texted or posted on social media or sent by semaphore) by someone who is not the in-court declarant of said words does not automatically make said words “hearsay.”  Rather, the Court notes that before words can be hearsay, the words must be an “out-of-court statement offered for the truth of the matter asserted therein” and not subject to a well-recognized exception making hearsay inadmissible.

The Court notes that in most instances where a hearsay objection is asserted, the opposing side skips over the “statement offered for the truth” and asserts an exception.  The trial court likewise considers whether the exception applies, rules, and the case moves forward.

In Davis, the Court concludes that skipping over the first element of the hearsay test was not a good idea in this instance.  If you go back to the second paragraph of this post, you will note that I chose my words (literally “words”) very carefully – no where does it say the Commonwealth offered a “statement,” not that it was offered “for its truth.”  What the Commonwealth did offer was as series of communications over a popular social media platform authenticated by the of the owner of the social media account who testified that she permitted the alleged co-conspirator to use account on her phone to set-up a drug transaction.

The Court of Appeals notes that not all words spoken or written are “statements.”  A statement, says the Court,  is “an oral or written assertion” about which the trier of fact is must make a determination of credibility – it must be something that is provably true or not.  Had I been drafting this opinion, I might have been tempted to include a footnote by way of example by quoting J.K. Rowling’s Harry Potter and the Philosopher’s Stone, “‘Welcome to a new year at Hogwarts! Before we begin our banquet, I would like to say a few words. And here they are: Nitwit! Blubber! Oddment! Tweak!’”  Dumbledore undoubtedly says “words,” but despite the many arguments of Potterheads about their meaning, the author as consistently maintained that the headmaster was merely making a joke by saying a random assortment of odd words. “Nitwit! Blubber! Oddment! Tweak!” is not a “statement.”

The Court continues, “Additionally, statements are only inadmissible hearsay if they are offered for a particular purpose: to prove the truth of the matter asserted therein.  If the value of the evidence is not tied to its credibility—i.e. is not offered for its truth—then the hearsay rule does not operate to exclude it.”  Harkening back to my reference to the boy who lived, the Court concedes that “the mere incantation that the statements are not offered for their truth is not sufficient for a court to admit such statements; the actual use at trial by the proponent is a relevant consideration when determining the purpose for which an out-of-court statement is offered.

It should be noted at this point that the Commonwealth made no such assertion in this case – and that begs the question whether the Court of Appeals hasn’t strayed off the reservation in deciding to broach the subject at all.  However, as is far too often the case, it is presently the rule in Virginia that only the appellant is barred from making new arguments of appeal – neither the appellee nor the appellate courts are prohibited from introducing new and novel lines of attack against finding error after the trial is over.

The Court of Appeals concludes that most of the “out-of-court statements contain[ed] no factual assertions whatsoever but are instead non-assertive inquiries or instructions” that were relevant to establishing Davis’ guilt of any of the offenses.  Although the court acknowledges that there were two statements of fact – although one was actually a misstatement of a fact (a lie), it was nonetheless provably true or false, neither of these was offered to establish Davis’ guilt of the crimes with which he was charged other than the alleged conspiracy.  At best, they showed a concert of action between Davis and the co-conspirator to set up a drug deal – not to commit a murder.

Davis contended that the evidence was offered to prove that he and the alleged co-conspirator were using the pre-text of a drug deal to lure the victim into a position where he could be ambushed.  The Court, however, says that none of the statements proved the existence of such a plan and, thus, were not offered for their truth with respect to the crimes (other than the conspiracy) with which Davis was charged and ultimately convicted.

My take on the opinion in this case is to quote Lt. Holden (Tony Curtis) to Capt. Sherman (Cary Grant) in Operation Petticoat, “Sir, in Las Vegas, the boys would say you’re trying to make your point the hard way.”  While I am not a great fan of harmless error, especially in Confrontation Clause matters, I do think this case was a better candidate for finding the two highly innocuous statements that were assertions of fact as being harmless, rather than not hearsay.  Put simply, the Court should have opted for the path of least resistance here instead of wandering down a path that neither the lower court nor the parties had chosen to follow.  The Court has been doing this a great deal lately, and it seems to be doing so merely for the academic exercise of demonstrating that if trial counsel and trial court had the time and staff to research the law more thoroughly, objections, responses and rulings would be broader and more erudite.  But that is not how trials work.