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.
For the media report of this story, see The Roanoke Times. My view of this incident is a little different — Judge Dillion had ruled and told the attorney to move on, but he persisted, she ruled again, but he persisted, she then told him to make his proffer (which does not require the judge to be present as its not part of the record relevant to her decision, only for appeal) and left the bench instead of holding the attorney in contempt. The judge was actually helping the attorney avoid being fined and possible jailed by absenting herself so that she was not forced to cite him (and thereby giving the defendant grounds for appeal). The US Attorney is correct that the argument was neither relevant to the purpose of the proceeding nor based on more than the “gossamer imaginings of defense counsel,” as one appellate court has referred to these types of arguments.
I have a new name for them . . .Post-Truth America Arguments. For at least the last five years, and I would argue that it started before the Trump campaign and presidency — certainly at least as far back as birtherism and in tracing its origins one could probably go back the Army-McCarthy hearings in which the Senator infamous proclaimed that he had documents proving {insert ever increasing number here} members of the Defense Department were Soviet spies and avowed communists — America has been plagued by a “belief” that objective truth does not exist. This belief — delusion is a better word — has been slowly creeping into our courtrooms for years, but has suddenly become a torrent, with criminal defense attorneys (and sometimes prosecutors) making assertions based not on facts, but upon a world view in which all public servants are corrupt, the government is the enemy of he people, and only they — the ennoble and embattled few who see the truth — can see clearly how rotten the system is.
How did we get to this point? Not having the training in sociology and psychology that would allow me to give a competent answer, I will not attempt to do so. But I will suggest that, at least as to America’s courtrooms, attorneys behaving as they ought, is the first step in combating it — and the attorney in this case was not behaving as he ought. A courtroom is supposed to be a place where we seek the truth, not disregard it. I realize that attorney arguments are not “evidence” and thus are not bound by the witness’ oath to speak “the truth, the whole truth, and nothing but the truth,” however, attorneys are bound by their ethical duty to address the court with candor even while zealously defending their clients. In my opinion, this attorney took the former principle to an unreasonable extreme when he wholly abandoned the latter.
The reality of the world we live in. The two stories in the images above were on pages 1 and 2 of The Roanoke Times today. Thousands, perhaps tens of thousands, of unmasked people attending the pre-game tailgate at Lane Stadium was on Page 1, while on Page 2 was a story with reporting a warning from the state health department for greater caution in social gatherings and travel on the holiday weekend.
Let me be clear, I fully support your right make bad choices for yourself — but risking the lives of others you could infect with COVID at the tailgate, because you are infected (whether you know it or not), or afterwards, because you became infected at the tailgate, just to drink beer, eat barbecue, and watch a damn football game isn’t just a bad choice — it’s a selfish, self-centered, egotistical, to hell with my neighbor, FU to humanity choice. And it’s all the worse because, despite being 20 months into the pandemic, I am willing to bet that almost none of people there gave the matter serious thought.
If they did, that thought consisted process was probably along the lines of “I’ve suffered the last year. I deserve this.” Suffered? Really? If you can afford to drive to a football game in a truck that probably cost more than my first house, consume quantities of food and alcohol that would give a cardiologist nightmares, and then attend a football game having paid as much as $318 (the average cost for a 50-yard line seat this year according to SeatGeek.com — a significant increase over the pre-pandemic 2019 season due to demand), I do not think you have suffered all that much.
Somewhere along the way the people of America stopped carrying about each other as a whole, focusing on narrower and narrower circles — my race, my state, may party, my (increasingly gated) community, my friends, my family . . . me. It’s not something that started with the pandemic. I think it started in 1950s when standards of living started to rise and we started to think of the American Dream as an entitlement to be given instead of an endeavor to be achieved.
As the standard of living of the predominantly white., middle class started to rise, we assumed that everyone was better off, which was largely true. We no longer had to care for or about the least among us. Even the least of us, we reasoned, were better off than most people in the rest of the world — this was, after all, the era of the Marshall Plan. We — we meant the government, because it wasn’t really our individual duty to help others — were taking care of not just our own poor, but of the poor of the world — meaning the Western European world. And that was great — so long as the government didn’t raise our taxes. Social concern shifted from wanting all to have enough to making sure that I had more. One car in every garage meant it was OK for me to have two, and two really nice cars at that.
I recall one example of this “I am owed this because I am an American” attitude from well before the pandemic. For decades, the US Forest Service has allowed camping in parts of the George Washington National Forest that covers a large swath of western Virginia, but there are limits on the number of consecutive nights you can stay in the designated areas and any camping structures must be temporary and removed from the site when you leave. These rules are clearly meant to allow more people to have access to the camping areas and keep them in a natural state. The rules, however, we laxly enforced for many years, primarily because there was really no need. People went to the campsites, stayed a few days or even a few weeks and cleaned up the site when they left (contrary to what many may think, there was a time when littering was considered distinctly anti-social — now it seems to be an American pastime).
However, in the early the 1990s and 2000s the park service started receiving complaints about permanent structures being erected, people staying for months at a time, and excluding others from campsites. An investigation proved that these complaints were well founded, with many of the campsites having been turned into family fishing and hunting compounds, often with signs asserting the exclusive right to use the site. The buildings were mostly ramshackle — built of cinderblocks and such — but clearly permanent and regularly inhabited. “Sanitary” facilities had also been built, though without running water and clearly not sanitary.
After repeated notices of violation were posted and ignored, the Forrest Service moved in with armed agents and bulldozers. Fortunately, at those sites where the “owners” were present, no one resisted. The Roanoke Times was there and ran a story. The attitude of one of residents was a clear expression of the general attitude, “Rich people have hunting camps. Why can’t we?”
The path to American selfishness is perhaps not that simple — and perhaps there wasn’t really a time when concern for the other, the stranger at our door, the widow, the orphan, was a near universal American attitude. Maybe we’ve just dropped the pretense that America us a place where your liberty is as precious to me as mine, and my wellbeing is my priority and should be assured, but yours is an “optional extra” that we can no longer afford. But that doesn’t mean we can’t find a path to something better.
End of Rant.