PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims and
Powell, JJ., and Russell, S.J.
JERRY LEE ANDERSON
OPINION BY
v. Record No. 110069 SENIOR JUSTICE CHARLES S. RUSSELL
November 4, 2011
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal presents the question whether a prior
consistent statement made by the complaining witness in a
criminal case was properly admitted in evidence to rehabilitate
the witness after her impeachment by a prior inconsistent
statement.
Facts and Proceedings
In accordance with familiar principles of appellate review,
the facts will be stated in the light most favorable to the
Commonwealth, the prevailing party at trial. The complaining
witness (the victim) was a 41-year-old woman who lived with her
husband and two daughters, ages 12 and 17. The victim had
completed only the seventh grade in school and had difficulty in
reading, writing and comprehending directions. She had known
Jerry Lee Anderson (the defendant) for several years because he
had worked on her family’s vehicles.
On May 1, 2009, the victim encountered the defendant at a
food market. He told her that her husband had asked him to
check the brakes on her van, that he would be at home "in a
little bit" and that she could bring the van over when she was
ready. The victim, who had her daughters with her, drove the
van to the defendant’s home in Pittsylvania County after leaving
the store. The defendant looked under the van’s hood and told
her that she would need to take the van somewhere to be put on a
lift. He invited her to come into the house and said he would
give her the phone number of a place that had a lift.
Leaving her daughters to wait in the van, the victim
followed the defendant into the house. As she entered the door,
the defendant closed it behind her and started "kissing on [her]
[and] rubbing on [her]." She told him to stop and struggled
with him and he said, "I got you where I want you." As the
struggle continued, the defendant seized her arms with
sufficient force to leave visible bruises. The defendant forced
her down onto a couch. She felt a cold, hard object touch the
left side of her head. She testified that she did not see the
object but heard a "click" that sounded like the cocking of a
gun. Assuming that a gun was being held to her head, she
"froze." While she felt the cold object still against her head,
she submitted to an act of oral sodomy while the defendant sat
astride her chest.
The defendant then put the object she felt against her
head, but never saw, into his pocket and told her that she could
leave. He told her that he would kill her and her family if she
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told anyone what had happened and reminded her that he knew
where she worked and where she lived.
The victim had been in the defendant’s house about 15
minutes, according to her younger daughter who had waited in the
van. The daughter testified that her mother was red-faced and
crying when she came out of the house but did not say why. When
they returned home, the victim’s husband was away at work. The
victim told her daughters to watch television while she went
into her own room where she could be heard crying.
The victim said nothing about the incident to her husband
or daughters but on the following day she called Dr. Regina
Curtis, a licensed clinical professional pastoral counselor at
the Cross Roads Christian Counseling Center. The victim had
been Dr. Curtis' client since 2004. The victim was "very upset
and emotional." She named the defendant and said that he had
"done bad things to her." Asked to specify the act that the
victim described, Dr. Curtis said "oral sex." Dr. Curtis
advised her to discuss the matter privately with her husband but
nobody else until they received legal advice.
The victim worked as a volunteer at the Cross Roads
Christian Counseling Center and knew Danville Police Officer
Michael Klauss, who served on the center’s board. After
discussing the matter with her husband, she called Officer
Klauss "around the beginning of May" and left a message asking
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him to return her call. He called her back and she asked if he
could meet with her personally. Officer Klauss met with her on
or about May 7 and she gave him a full account of the incident.
After speaking with Officer Klauss, she reported the matter to
the Pittsylvania County Sheriff’s Department, although she had
been afraid to do so previously. This resulted in an interview
by Deputy Sheriff C. L. Eikost at her home, in the presence of
her husband and Officer Klauss. She described the incident to
the deputy, who noted that she still had visible bruises on her
arms.
J. Todd Barrett, an investigator with the sheriff’s
department, had the victim make two recorded telephone calls to
the defendant, which Barrett audited. During these calls, the
defendant did not deny the victim’s statements concerning the
incident. Investigator Barrett then went to the defendant’s
home and interviewed him. At first, the defendant denied that
anything had happened between him and the victim on May 1.
Later, when confronted with the content of the two telephone
calls from the victim, the defendant changed his account and
admitted that he had oral sex with the victim on May 1 but
asserted that "it was her idea."
Indicted for fellatio by force in violation of Code § 18.2-
67.1, the defendant waived trial by jury and the case came to a
bench trial in the Circuit Court of Pittsylvania County. The
4
Commonwealth presented the testimony of the victim, her younger
daughter, Dr. Curtis, Officer Klauss, Deputy Eikost and
Investigator Barrett. The defendant took the stand in his own
defense and presented three witnesses to his good reputation for
truth and veracity. When asked on cross-examination whether he
contended that the encounter with the victim was "completely
consensual," the defendant answered, "Yes, Ma'am."
In his opening statement, defense counsel stated that the
evidence would show that the victim had made prior statements
inconsistent with her testimony at trial, 1 particularly
"regarding the firearm."
In his cross-examination of the victim, defense counsel
asked her whether she had told Deputy Eikost that she "saw a
gun." She denied having made that statement and said that she
had tried to explain that she felt what she thought was a gun
and heard its "click" but had not seen it.
Defense counsel objected to the testimony of Dr. Curtis and
Officer Klauss when they were asked to recount what the victim
1
The defense relied on several alleged inconsistencies in
the victim’s account of the events that followed the sexual
assault. Because the defendant admitted the act of oral sex,
however, contending only that it was consensual, none of these
are material to the single issue in dispute at trial: whether
the act was accomplished by force. Accordingly, we confine our
consideration to statements concerning whether the victim saw a
weapon.
5
had told them about the assault, on the ground that it was
inadmissible hearsay. The Commonwealth responded that these
accounts were offered as prior consistent statements to refute
the defense’s effort to impeach the witness by a prior
inconsistent statement and that they were not offered as
"substantive" evidence. The court overruled the objections.
Dr. Curtis testified that the victim did not tell her that she
saw a gun but that she "just felt it."
Officer Klauss testified that the victim told him that she
couldn’t describe the gun and all she could tell him was that
"she heard him cock the gun." Officer Klauss gave a detailed
account of the victim’s statement to him, which corresponded
closely with her trial testimony. Officer Klauss, who had been
present at the victim’s interview with Deputy Eikost, also
testified, over a similar hearsay objection, that he recalled
that she had told Eikost a similar version, that she had not
actually seen the gun. Deputy Eikost testified that he had
noted in his report that the victim said that she "saw the
firearm." That is the inconsistency upon which the defense
relied to impeach the testimony of the victim and upon which the
court relied to justify the admission of the prior consistent
statements made to Dr. Curtis and Officer Klauss.
The court found the defendant guilty and sentenced him to
15 years imprisonment with six years and six months suspended.
6
The Court of Appeals denied his appeal by a per curiam order and
again on review by a three-judge panel. We awarded the
defendant an appeal.
Analysis
In Scott v. Moon, 143 Va. 425, 434, 130 S.E. 241, 243,
(1925), we observed, "the repetition of a story does not render
it any more trustworthy." For that reason, there is a general
rule excluding the prior consistent statements of a witness that
are offered for the purpose of buttressing his testimony at
trial. Faison v. Hudson, 243 Va. 397, 404, 417 S.E.2d 305, 309
(1992) (citing cases). Nevertheless, in Virginia, there are two
well-recognized exceptions to this general rule of exclusion.
Prior out-of-court statements made by a witness, consistent with
his testimony at trial, may, in those circumstances, be admitted
for the purpose of rehabilitating the witness after his
credibility has been challenged.
Circumstances triggering the first exception are attacks on
the credibility of the witness suggesting that he has a motive
to falsify his testimony, such as bias, interest, corruption or
relationship to a party or a cause, or that his testimony at
trial is a "recent fabrication" designed to serve such a motive.
Our decisions in Faison and in Ruhlin v. Samaan, 282 Va. ___,
___ S.E.2d ___ (this day decided), discuss this exception to the
general rule of exclusion. As we explained in Ruhlin, it is
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subject to an important condition. The prior consistent
statement, to be admissible, must have been made before the
motive to falsify existed. Id. at ___, ___ S.E.2d at ___; see
also Charles E. Friend, The Law of Evidence in Virginia, 182
(6th ed. 2003).
In Virginia, there is a second exception to the general
rule of exclusion: Where the opposing party has attempted to
impeach the witness by offering a prior inconsistent statement
made by the witness, prior consistent statements made by the
witness are admissible to support the witness. Id.
It is appropriate to admit a prior consistent
statement under these circumstances. The fact that
a witness made a prior consistent statement, as
well as an inconsistent statement, is relevant in
considering the impeaching effect of the
inconsistent statement on the witness's testimony.
Clere v. Commonwealth, 212 Va. 472, 473, 184 S.E.2d 820, 821
(1971). Although we recognized, in Clere, that other
jurisdictions followed different rules, some excluding prior
consistent statements altogether in these circumstances, we
adhere to the principle that the fact-finder, having the
responsibility of weighing the credibility of the witness, is
entitled to consider both the fact that he uttered consistent
statements, along with inconsistent statements, and the
circumstances in which each was made, in determining the weight
to be given to his testimony.
8
The present case, like Clere, involves the second
exception. In contrast to the first, the second exception has
never been subject to the requirement that the prior consistent
statement, to be admissible, must have been made at a time when
no motive to falsify existed. 2 The reason for the distinction is
that the first exception applies only where the opposing party
has made an attack on the credibility of the witness by
attempting to show that he has a motive to falsify his
testimony. In the case of a party litigant in a civil case or
the defendant in a criminal case testifying in his own behalf,
such a motive is ordinarily self-evident. In the case of an
apparently neutral and independent witness, however, the
opposing party must have attacked the credibility of the witness
by suggesting that such a motive exists. The second exception,
however, is triggered by the introduction of a prior
inconsistent statement, without more. It is not dependent upon
2
In Clere the witness testified at trial that the defendant
murdered the victim. Shortly after the crime, the witness
herself had initially confessed to police that she committed the
killing, but then offered a second statement to police during
their investigation, naming defendant as the killer. This
second statement was made after the statement naming herself as
the killer, and thus it was made after the witness arguably had
a litigation motive to shift blame from herself to another
person. This later statement was held properly admitted once
the first statement admitting her own guilt was used as a prior
inconsistent statement to impeach her trial testimony. 212 Va.
at 473, 184 S.E.2d at 821.
9
a contention, by the opposing party, that the witness has a
motive to falsify. The prior inconsistent statement, by itself,
calls the trustworthiness of the testimony of the witness into
question. It is then appropriate, as we said in Clere, to admit
a prior consistent statement made by the witness as it may
affect his credibility.
Both exceptions to the general rule excluding prior
consistent statements are subject to the limitation that the
prior consistent statement may be considered by the fact-finder
only for the fact of its utterance, not for the truth of its
content. 3 Because it is not offered for its truth, it is "non-
hearsay" and not subject to the hearsay rule. 4 The fact-finder
may consider the fact of its utterance along with all other
evidence bearing on the credibility of the witness.
In the present case, the defendant established that there
was an inconsistency between the victim’s testimony that she had
not seen a gun and Deputy Eikost’s note in his report that she
had told him otherwise. Applying the principles stated above,
we hold that this was sufficient to trigger the second exception
to the rule excluding prior consistent statements. The fact
3
In a jury trial, the jury must be so instructed.
4
Properly speaking, such evidence does not come within an
"exception to the hearsay rule" because it is not hearsay at
all. Andrews v. Commonwealth, 280 Va. 231, 296, 699 S.E.2d 237,
274 (2010).
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that both the consistent and the inconsistent statements were
elicited from witnesses called by the same party is immaterial.
Creasy v. Commonwealth, 9 Va. App. 470, 474, 389 S.E.2d 316, 318
(1990). We therefore hold that the circuit court did not err in
admitting the victim’s prior consistent statements to Dr. Curtis
and Officer Klauss.
The defendant argues on appeal that the prior consistent
statements that the circuit court admitted in evidence over his
objection went far beyond proof of the mere fact of their
utterance, as would have been admissible under the second
exception discussed above or under Code § 19.2-268.2. Indeed,
Officer Klauss testified to all the details related to him by
the victim, which nearly amounted to a repetition of her trial
testimony.
Even in a case tried without a jury, 5 the amount of detail
contained in a prior consistent statement that may properly be
admitted into evidence is limited. At some point, restatement
of the impeached witness' account crosses the line separating
rehabilitation from mere repetition, recalling our admonition in
5
A judge hearing a case without a jury is vested with wider
discretion in the admission of evidence, because of training and
experience, than he or she would be when presiding at a jury
trial. See e.g., Adams v. Adams, 233 Va. 422, 429, 357 S.E.2d
491, 495 (1987); Eckhart v. Commonwealth, 222 Va. 213, 216, 279
S.E.2d 155, 157 (1981).
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Scott v. Moon, quoted above. In the present case, however, it
is unnecessary to define the outer limits of the permissible
detail that may be admitted when a prior consistent statement is
offered to rehabilitate a witness impeached by a prior
inconsistent statement. Assuming, without deciding, that parts
of the prior consistent statements presented by the Commonwealth
in this case were overly repetitious of the victim's trial
testimony, and that the circuit court erred in admitting them,
that error was harmless in the circumstances.
A non-constitutional error is harmless when it "'plainly
appears from the record and the evidence given at the trial that
the parties have had a fair trial on the merits and substantial
justice has been reached.' " Rose v. Commonwealth, 270 Va. 3,
11-12, 613 S.E.2d 454, 458 (2005) (quoting Code § 8.01-678). In
a criminal case, if "the alleged error substantially influenced"
the finder-of-fact, the error is not harmless. Clay v.
Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001).
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 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 in grave doubt, the
conviction cannot stand.
12
Rose, 270 Va. at 12, 613 S.E.2d at 458-59.
Independent evidence bolstered the credibility of the
victim in this case. Both Dr. Curtis and Officer Klauss
testified that the victim reported the sexual assault soon after
it happened, which testimony was admissible under Code § 19.2-
268.2. The victim's daughter testified that her mother was
crying when she came out of the defendant's house and when they
returned to their home; and Deputy Eikost testified to seeing
bruises on the victim's arms still visible days after the event.
The court also heard the testimony of Investigator Barrett,
stated above, concerning the defendant's reaction to the
recorded telephone calls and his denials, followed by his
admission that he had indeed engaged in oral sex with the
victim.
Considering this testimony and the trial court’s ability to
directly see and hear the witnesses as they testified, we can
say “with fair assurance” that any error “had but slight effect”
on the trial court’s credibility determinations. Clay, 262 Va.
at 260, 546 S.E.2d at 731.
Conclusion
Based on the record, we conclude that the defendant “had a
fair trial on the merits and [that] substantial justice has been
reached.” Rose, 270 Va. at 12, 613 S.E.2d at 458. For the
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reasons stated, we will affirm the judgment of the Court of
Appeals.
Affirmed.
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