Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.
CHARLES DOUGLAS RINER
v. Record No. 031299 OPINION BY JUSTICE CYNTHIA D. KINSER
September 17, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Charles Douglas Riner (“Riner”) was convicted by a
jury of the first degree murder of his wife, Karen Denise
Riner (“Denise”), in violation of Code § 18.2-32; of arson,
in violation of Code § 18.2-77; and of petit larceny in
violation of Code § 18.2-96. The Court of Appeals of
Virginia affirmed the convictions and the judgment of the
Circuit Court of Wise County (“the trial court”). Riner v.
Commonwealth, 40 Va. App. 440, 479, 579 S.E.2d 671, 691
(2003).
We awarded Riner this appeal on six assignments of
error.1 He challenges the denial of his motion for a change
of venue, the denial of his motion for a mistrial because
of alleged jury misconduct, the use of a “private
prosecutor,” the admission of double hearsay testimony
concerning a threat he made to his wife, the admission of
certain business records because the Commonwealth failed to
1
The petit larceny conviction is not before us in this
appeal.
show that the entrant was unavailable to testify, and the
sufficiency of the evidence to support the arson
conviction. We also awarded an appeal on the
Commonwealth’s two assignments of cross-error. Finding no
error, we will affirm the judgment of the Court of Appeals.
I. RELEVANT FACTS2
In accordance with established principles of appellate
review, we state the facts in the light most favorable to
the Commonwealth, the prevailing party in the trial court.
We also accord the Commonwealth the benefit of all
inferences fairly deducible from the evidence. Armstrong
v. Commonwealth, 263 Va. 573, 576, 562 S.E.2d 139, 140
(2002); Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975). Circumstantial evidence, when
sufficiently convincing, is entitled to the same weight as
direct evidence. Derr v. Commonwealth, 242 Va. 413, 424,
410 S.E.2d 662, 668 (1991); Epperly v. Commonwealth, 224
Va. 214, 228, 294 S.E.2d 882, 890 (1982).
A. THE FIRE
In the early morning hours of August 12, 1998, Larry
Odle, who lived next to the Riners in the Town of Coeburn
in Wise County, saw flames coming from the Riner house.
2
We will recite additional facts relevant to
particular assignments of error.
2
Odle walked outside to investigate the fire and observed a
“shadow or reflection . . . peek around the [left] corner”
of the Riner house three or four times. A person then
emerged from that corner and yelled “help, help, my house
is on fire.” Odle returned to his house and called the
“911” emergency number. He then went back to the site of
the fire and saw Riner walk from the same left corner of
the burning house carrying two of the Riner children.3
One of the first three police officers to arrive at
the scene stated that, when he got there, the fire was
“basically still in the lower part of the house . . . and
it was crawling across the [front] porch area and coming
out the other side where the top part of the house was on
fire.” When that officer exited his police vehicle, he
observed Riner and two small children coming around the
left corner of the house.4 The officer approached Riner and
asked if anyone else was in the home. Riner did not
respond and, in the officer’s opinion, “[s]eemed surprised
that someone was there.” The officer repeated his
3
During their eight-year marriage, the Riners had
three children. Denise also had a son by a previous
marriage. That son was not at the Riner house when the
fire occurred.
4
The Riners’ third child was already out of the house.
Riner told one of the police officers that he had sent that
child to call the fire department.
3
question, but Riner again did not answer. Only after two
of the officers approached the burning house did Riner
inform the third officer that his wife was still inside
their home. Two of the officers then kicked opened a door
on the rear of the house, but they could not go inside more
than two or three feet because of the intense smoke and
heat.
The fire consumed the second floor and roof of the
Riner house as well as the front porch, including the floor
and the “uprights” of the porch. There was also extensive
damage throughout the interior of the first floor,
including the master bedroom where Denise’s body was found.5
There and elsewhere on the first floor of the house, fire
investigators discovered piles of paper that had been torn
apart lengthwise. Some of the torn paper came from
correspondence or publications belonging to Riner.
According to the forensic pathologist who performed an
autopsy on Denise’s body, Denise died from smoke
inhalation, which is determined by looking in the airways
for “soot” and “black material” and measuring the carbon
monoxide level in the blood. The forensic pathologist
stated that Denise’s body had been “incinerated.” Her
5
The master bedroom was located at the front of the
house on the right, as viewed from the main road.
4
skin, muscles, facial features, scalp, arms and legs had
been burned. Because of the extensive burning of her body,
the forensic pathologist could not determine whether Denise
had suffered other injuries or had been rendered
unconscious by some other trauma before her death.
However, the forensic pathologist did not find any evidence
of blunt force or penetrating injuries to Denise’s body.
Although a partially burned baseball bat was found near her
body, the forensic pathologist could not put that bat “in
or on the body.”
On the night of the fire, Riner claimed that he was
upstairs, asleep in a room with the three Riner children.
However, the family’s housekeeper testified that she did
not remember anytime that all three children had slept
upstairs or in the same bed with Riner. Riner also
admitted that the children normally slept downstairs in a
bed with Denise.
Riner testified that, when he awoke and smelled smoke,
he looked toward the rear of the house and saw smoke coming
up the steps. He stated that the smoke was so intense that
he could barely breathe and that his eyes were burning so
badly that he could not see. However, he was able to find
the three children, help them out a window onto the rear
porch roof, and then lower them to the ground. Although
5
Denise died from smoke inhalation, Riner did not have any
symptoms consistent with carbon monoxide intoxication or
carbon monoxide poisoning upon examination at a local
emergency room on the morning of the fire. The forensic
pathologist testified that, if smoke from a fire is very
dense, a person could breathe in a lethal level of carbon
monoxide within seconds. Additionally, a nurse who checked
Riner in the emergency room did not observe any soot on him
or smell any smoke about his body. Riner did, however,
have a low oxygen level based on an arterial blood gas
study, which was consistent with a sudden or acute injury
to his airway from inhaling smoke.
B. RINER’S ACTIVITIES PRIOR TO AND AFTER THE FIRE
Two issues caused recurring disagreements between the
Riners during their marriage. One of those issues
concerned Riner’s discipline of Denise’s son by her
previous marriage. In the early part of August 1998,
Denise learned that Riner had choked and slapped her son at
a family reunion. That incident exacerbated the Riners’
already existing marital difficulties, causing Denise to
meet with an attorney on August 4 to obtain information
about divorce proceedings. The next day she opened a
checking account in her own name. On August 7, she
confronted Riner with her knowledge about his abuse of her
6
son and demanded that he move out of the marital residence.
Riner apparently agreed to move on the following weekend,
which would have been the weekend immediately after the
fire. However, he told one of the fire investigators that
Tuesday night, August 11, 1998, was to be his last night in
the marital home.
The other subject causing disagreement was the
couple’s financial condition. Within a week after the
Riners were married in 1990, Riner quit his job.
Throughout the marriage, Denise, a nurse, provided the
primary financial support for the family.
By mid-1998, Riner had pressing financial
difficulties. He had incurred several substantial debts
and was delinquent in some of his financial obligations.
In particular, Riner had agreed to make restitution in the
amount of approximately $5,400 by October 1998 as a
condition of probation in a federal pre-trial diversion
program in which he was participating. Due to his failure
to pay the restitution as scheduled, Riner still owed about
$2,900 as of June 1998 and was therefore facing the
possibility of being prosecuted on federal bank fraud
charges. In fact, he was scheduled to meet with his
federal probation officer on August 12, 1998, the day of
the fire. The probation officer had also learned that
7
Riner had two outstanding criminal charges, one a
misdemeanor and one a felony, for having issued two checks
for which there were insufficient funds to pay the checks.
After Denise’s death, Riner collected approximately
$8,500 from Denise’s employer and then paid the restitution
in full. Riner insisted, however, that he paid the federal
restitution with money he had received from selling two
vehicles. He also paid the indebtedness owed to a local
merchant for the two checks that were returned for
insufficient funds.
Riner also filed two insurance claims. One was a fire
insurance claim in the amount of $186,820.24, of which the
sum of $116,453.00 was for personal property. The second
claim was on a group life insurance policy provided to
Denise by her employer. In anticipation of receiving funds
from those claims, Riner purchased a used Mercedes
automobile by borrowing $9,000 on a 30-day single payment
note. He also relocated himself and the three Riner
children to eastern Tennessee and made an offer to purchase
a house there for the price of $169,000.
The day before the fire, a neighbor observed Riner
storing three trash bags in a building located apart from
the Riner house. In March 1999, Riner sold jewelry at a
pawn shop located in Bristol, Tennessee. Denise’s sisters
8
subsequently accompanied a police officer to the pawn shop
and identified three rings found there as belonging to
Denise. The rings were part of the jewelry Riner sold, and
the Commonwealth introduced evidence showing that the rings
would have been damaged or destroyed if they had been in
the Riner house during the fire. One of the rings came
from Denise’s great-grandmother. Another ring was a
diamond anniversary band that Denise wore daily and was, in
fact, wearing on the day prior to her death. The third
ring was a pearl ring that Denise had received as a
birthday gift from her co-workers at her place of
employment.
C. RINER’S ARREST
In November 1999, Riner told his employer and
personnel at his children’s schools that he and the
children would be traveling to Pennsylvania to attend a
funeral. Instead, Riner spent about 19 days traveling
around to different destinations in the United States and
then flying to Panama. The flight out of the country
occurred at a time when the police investigation into the
fire and death of Denise was nearing completion and Riner
remained a prime suspect. In fact, Riner was indicted for
9
first degree murder and arson on January 18, 2000.6 Riner
was arrested in Panama on January 21, 2000. At that time,
he had in his possession clothes, documents, and luggage
that had been in the house prior to the fire.
II. ANALYSIS
A. CHANGE OF VENUE
Prior to trial, Riner moved for a change of venue,
asserting that he could not receive a fair trial in Wise
County because of prejudicial pre-trial media coverage of
the case. After an ore tenus hearing, the trial court took
the motion under advisement and allowed the parties to
submit affidavits from Wise County citizens regarding the
change of venue issue. After hearing additional argument
on Riner’s motion, the trial court again took the motion
under advisement, stating from the bench that, if selecting
a jury “becomes a problem, then we will change the venue.”
Riner did not object to the court’s decision to do so.
At the conclusion of juror voir dire, the trial court
asked, “Any motions by counsel before we take a short break
and come back and select the jury?” Counsel for Riner
responded, “No, Your Honor.” However, before the parties
exercised their peremptory strikes, a dispute arose
6
A September 1, 2000 superseding indictment charged
Riner with capital murder, arson, and robbery.
10
concerning whether the Commonwealth would introduce the
fact of Riner’s trip to Panama as evidence of flight.
Riner indicated that he wished to counter any such evidence
suggesting flight by mentioning in opening statement and by
introducing into evidence the fact that he had passed a
polygraph test. Riner asserted that the successful
polygraph result directly influenced his decision to travel
to Panama. Riner took the position that, by introducing
evidence about the trip and the polygraph test, he could
demonstrate that he had a legitimate reason for going to
Panama, which would rebut adverse media publicity about the
trip. During the course of the colloquy with the trial
court about these issues, the court stated:
Well, you know, there’s no proof that these
jurors know about the flight, but down deep in my
little heart and my conscience, I know dang good and
well they probably know or some of them, if not all of
them, some of them know about it and I have a hard
time ignoring that fact. I can’t ignore it.
In response to the trial court’s comment and out of
concern that a ruling by the court to admit the polygraph
evidence would be tantamount to a finding that the jury was
not impartial, the Commonwealth stated that, if the trial
court intended to admit evidence about the polygraph
because of its perceived “taint in the community,” then the
Commonwealth was prepared to join in Riner’s motion for a
11
change of venue. Riner initially disagreed with the basis
of the Commonwealth’s motion, but he ultimately joined in
the motion. At no point during the discussion about the
Commonwealth’s motion for a change of venue or when Riner
joined in that motion did he reiterate or rely upon his
previously stated reasons for a change of venue. The trial
court overruled the motion.
The parties then exercised their peremptory strikes
without any further motions or discussion. The next
morning before the jurors selected to hear the case were
sworn, the trial court asked, “Any preliminary motions
before we bring in the [j]ury?” Counsel for Riner stated,
“None from the defense.” The 12 jurors and 3 alternates
were then sworn to try the issues joined between the
Commonwealth and Riner.
As presented on appeal, Riner’s assignment of error
challenging the trial court’s denial of a change of venue
is three-fold. He argues that the trial court applied an
improper legal standard because it considered only the fact
that a jury had been selected rather than “the ease of
seating the jury” as required by our decision in Thomas v.
Commonwealth, 263 Va. 216, 232, 559 S.E.2d 652, 661 (2002).
Next, he asserts that prejudicial pre-trial publicity
prevented the selection of an impartial jury and that the
12
trial court therefore erred in denying his change of venue
motion. Finally, he says that the trial court erred in
denying the Commonwealth’s change of venue motion, joined
in by Riner, because the court itself questioned the
impartiality of the jury.
With regard to Riner’s assertion that the trial court
applied an incorrect legal standard, the Court of Appeals
concluded that Riner had defaulted this portion of his
argument. Riner, 40 Va. App. at 457, 579 S.E.2d at 679.
Riner did not argue before the trial court that it had
applied an improper legal standard when considering the
change of venue motion nor did he object when the court
stated, “I hate to say that I told you so, but we got a
jury now.” Applying Rule 5A:18, the Court of Appeals thus
held that this aspect of his challenge to the trial court’s
refusal to change venue was barred. Id. at 456-57, 579
S.E.2d at 679.
In his assignment of error to this Court with regard
to the change of venue issue, Riner states only that the
“Court of Appeals erred in affirming the trial court’s
erroneous denial [of] Riner’s motion for change of venue
and a joint motion for change of venue.” Riner does not
challenge that portion of the judgment of the Court of
Appeals barring his argument that the trial court used the
13
wrong legal standard. Thus, under Rule 5:17(c), we do not
consider the issue. See Burlile v. Commonwealth, 261 Va.
501, 507-08, 544 S.E.2d 360, 363 (2001). We also find no
reason to apply the “ends of justice” exception as
requested by Riner.
We further conclude that Riner defaulted his challenge
to the trial court’s denial of his change of venue motion
in which he asserted that he could not receive a fair trial
because of adverse pre-trial media coverage of the case.
When voir dire of the jury was completed, the trial court
asked counsel for the parties whether there were any
motions. Riner’s counsel specifically stated, “No, Your
Honor.” Riner did not renew his change of venue motion at
that point or remind the trial court that it previously had
taken the motion under advisement. Nor did he do so before
the parties exercised their peremptory strikes or before
the 12 jurors and 3 alternates selected to hear the case
were sworn.
The posture of Riner’s change of venue motion is
analogous to the situation in Green v. Commonwealth, 266
Va. 81, 580 S.E.2d 834 (2003). There, the defendant, like
Riner, had filed a pre-trial change of venue motion. Id.
at 93, 580 S.E.2d at 841. The trial court took the motion
under advisement, and the defendant did not object to the
14
court’s doing so. Id. The defendant did not renew the
motion or remind the court that it was still pending at any
time, including after the jury panel had been qualified or
before the parties exercised their peremptory strikes. Id.
at 93-94, 580 S.E.2d at 841-42. Because the defendant did
not object to the trial court’s decision to take the change
of venue motion under advisement pending outcome of voir
dire, we held that it was “incumbent upon [the defendant]
to renew the motion before the jury was empanelled and
sworn, or at least remind the court that it was still
pending and that he wanted the court to rule on it.” Id.
at 94, 580 S.E.2d at 842. Thus, we held that the defendant
had waived his change of venue argument under Rule 5:25.
Id. at 95, 580 S.E.2d at 842.
We reach the same conclusion here. Like the defendant
in Green, Riner did not object to the trial court’s
decision to take the change of venue motion under
advisement. Thus, it was incumbent upon him to renew that
motion or remind the court that it was still pending at
some point before the jurors selected to hear the case were
sworn. Since he failed to do so, Riner’s argument for a
change of venue because of pre-trial publicity is waived.
See Rule 5:25.
15
Consequently, the only aspect of the change of venue
issue properly before this Court is Riner’s challenge to
the trial court’s denial of the Commonwealth’s change of
venue motion joined in by Riner. However, the reason for
that motion was narrow. The Commonwealth wanted a change
of venue only if the trial court, concerned that some of
the jurors probably knew about Riner’s trip to Panama,
intended to allow Riner to introduce evidence that he had
passed a polygraph test. In other words, the Commonwealth
was amenable to a change of venue for the sole purpose of
eliminating the trial court’s rationale for allowing Riner
to introduce evidence about the polygraph test. Riner
initially objected to the basis of the Commonwealth’s
motion but eventually decided to join it. During the
discussion on the Commonwealth’s motion, Riner did not
present any other reasons for joining in the motion nor did
he reiterate his prior argument concerning pre-trial
publicity. Thus, we consider only whether the trial court
abused its discretion in refusing the Commonwealth’s
specific motion.
Contrary to Riner’s argument, the trial court’s
statement that at least some of the jurors probably knew
about Riner’s trip to Panama cannot be understood as a
question in the court’s mind about the jurors’
16
impartiality. Instead, the trial court merely indicated
that, when deciding whether Riner could introduce evidence
that he had passed the polygraph test, it could not ignore
the fact that some jurors probably knew about the Panama
trip. The trial court’s statement was not a finding that
the jurors in fact had this knowledge and could not ignore
it, or that the jury was not impartial.
“[T]here is a presumption that a defendant can receive
a fair trial from the citizens of the jurisdiction in which
the offense occurred.” Mueller v. Commonwealth, 244 Va.
386, 398, 422 S.E.2d 380, 388 (1992). Only when that
presumption is overcome by evidence “demonstrating that the
feeling of prejudice on the part of the citizenry is
widespread and is such that would ‘be reasonably certain to
prevent a fair trial’ ” is a change of venue warranted.
Id. (quoting Stockton v. Commonwealth, 227 Va. 124, 137,
314 S.E.2d 371, 380 (1984)). The Commonwealth’s reason for
requesting a change of venue was to avoid an anticipated
evidentiary ruling it did not like. That reason was not
sufficient to overcome the presumption that Riner could
receive a fair trial from the citizens of Wise County.
Thus, we hold that the trial court did not abuse its
discretion in denying the Commonwealth’s motion for a
17
change of venue, that motion having been joined in by
Riner. See id.
B. JUROR MISCONDUCT
On the 16th day of trial, the trial court dismissed
juror Gibson from jury service because of his failure to
abide by the court’s instructions concerning discussion of
the case among jurors while the trial was ongoing. Riner
made several motions for a mistrial based on this juror’s
misconduct, all of which the trial court denied. The Court
of Appeals concluded that the trial court did not abuse its
discretion in denying Riner’s motions for a mistrial. See
Riner, 40 Va. App. at 465-70, 579 S.E.2d at 684-86. We
agree.
The problems with juror Gibson began on day eight of
the trial. That morning, before trial commenced, juror
Gibson went to the office of the Commonwealth’s Attorney to
ask a question about one of the Commonwealth’s exhibits,
the medical examiner’s report. The juror spoke with the
secretary of the Commonwealth’s Attorney and stated that
the exhibit indicated that Riner found his wife’s body but
that other evidence showed that Riner was at the hospital
when Denise’s body was found at the fire scene.7 The
7
The parties stipulated that the information in the
exhibit was incorrect because Riner was in fact at the
18
Commonwealth’s Attorney did not talk to juror Gibson and
immediately reported the incident to the trial court.
Riner moved for a mistrial on the grounds that juror Gibson
had ignored the court’s instructions and had conducted, or
attempted to conduct, an independent investigation. The
trial court denied the motion, finding no prejudice to
Riner.
On the 11th day of trial, the bailiff delivered a note
from a juror to the trial court. The note was directed to
the Commonwealth’s Attorney and asked, “It has been
established that the floor under the body was unburnt; what
type of clothing, if any, was under the body.” Although
Riner now asserts that juror Gibson was the author of this
note, he presented no evidence to establish that fact. Nor
did he move for a mistrial when the note was brought to the
trial court’s attention.
During Riner’s testimony on day 16 of the trial, his
counsel moved for a mistrial because of juror Gibson’s
“distractions, inattentiveness, and . . . misconduct.”
Counsel noted that this juror had been talking to two
fellow jurors during the presentation of evidence. Riner’s
counsel stated to the trial court, “I don’t know what’s
hospital when his wife’s body was found in the burned
house, and the trial court so instructed the jury.
19
going on in the jury room, but if he’s . . . doing that
publicly in the courtroom, my common sense tells me that
he’s engaging in similar conduct . . . in other places.”
The trial court and the Commonwealth’s Attorney
acknowledged that they had also noticed some of the
behavior pointed out by Riner’s counsel.
The trial court decided to question under oath juror
Gibson as well as the two jurors to whom he had been
speaking in the jury box. During the questioning of juror
Gibson, he admitted commenting to two jurors about exhibits
while witnesses were testifying. One of those exhibits was
a picture showing Denise’s pearl ring. Juror Gibson had
pointed out to another juror that “it looks like that pearl
ring that [Denise] got and [Riner] said he didn’t recognize
any of the rings.” Juror Gibson also admitted that he had
sometimes watched for audience or lawyer reaction to
certain evidence rather than looking at the witnesses who
were testifying. The two jurors who were questioned
confirmed that juror Gibson had made comments to them about
certain exhibits. However, they both stated that they had
not been influenced by juror Gibson’s comments and still
had an open mind about the case.
Riner then moved for a mistrial, not because of any
concern about the two jurors to whom juror Gibson had made
20
comments in the jury box, but because of “the kind of
unknown comments he’s made in the jury room.” In the
alternative, Riner asked the trial court to excuse juror
Gibson. The trial court denied the mistrial motion but did
dismiss juror Gibson from jury service.
The trial court subsequently advised the remaining 14
jurors that it had released juror Gibson and asked en masse
whether juror Gibson had commented to any of them about the
facts, exhibits, or evidence in the case. Eight jurors
answered affirmatively by raising their hands. The trial
court then questioned those eight jurors individually under
oath.
That questioning revealed that juror Gibson had indeed
made comments about the evidence. For example, he had
speculated that, if Denise was not clothed, she might have
been raped, and he had discussed a witness’s testimony
about the terms “flammable” and “combustible.” Juror
Gibson also had made inappropriate sexual comments to a
juror. All the jurors who were questioned expressed their
annoyance with juror Gibson and his behavior. They told
the trial court that they had repeatedly asked him to
refrain from discussing the evidence, and some admitted
that they had attempted to avoid him. They were also
adamant that they had not been influenced by juror Gibson’s
21
behavior and comments, still had open minds about the case,
and could be fair to both sides. In one juror’s words,
“[Y]ou could tell he was kind of a blow bag.”
Several jurors also reported that juror Gibson had
frequently contacted his wife during the lunch break in
order to learn what the newspaper headlines said about the
trial. He had then attempted to share that information
with the jury. However, only one juror remembered anything
specific that he had said about the newspaper reports.
That juror recalled that juror Gibson had mentioned that a
newspaper article reported that the defense had moved for a
mistrial because jurors were taking notes.
After the juror questioning was completed, Riner
renewed his motion for a mistrial on three specific
grounds: (1) the comment to a juror in the jury box about
the exhibit showing the pearl ring; (2) the speculation
that Denise might have been raped if she was not clothed;
and (3) the newspaper report about the defense mistrial
motion. The trial court overruled Riner’s motion.8 The
trial court did, however, give the jury a cautionary
instruction with regard to juror Gibson’s behavior and
comments:
22
The Court instructs you jurors that Mr. . . .
Gibson, one of your jurors yesterday, throughout the
trial until yesterday, made certain assertions and the
Court admonishes you and warns you that you cannot
believe and you should not and you shall not believe
any assertions that he, Mr. . . . Gibson, made while
in the courtroom, in the jury box or in the jury room,
when we took breaks. Some of his assertions were not
correct and you are to ignore and disregard what
Mr. . . . Gibson has said. I want you to rely upon
your independent recollection of the facts, as they,
facts, exhibits and law as it will come out and has
come out already in this trial, in this courtroom. You
should not consider and again, I advise you and order
you to disregard anything, any assertions that
Mr. . . . Gibson has said in your presence.
On appeal, Riner separates juror Gibson’s activities
and comments into two categories, “Third Party Contact” and
“Other Misconduct.” He argues that he was prejudiced by
juror Gibson’s third-party contact and/or other misconduct
and, therefore, did not receive a fair trial. We do not
agree and will address these categories in that order.
1. THIRD PARTY CONTACT
Riner asserts that juror Gibson’s contact with his
wife regarding the newspaper headlines about the case was
unauthorized third party contact. Citing Remmer v. United
States, 347 U.S. 227, 229 (1954), Riner argues that such
contact was presumptively prejudicial, thereby shifting the
burden to the Commonwealth to establish that it was
8
Riner also filed a post-trial motion to set aside the
verdict in which he challenged the trial court’s denial of
this mistrial motion based on juror misconduct.
23
harmless to the defendant. We agree that the legal
standard for evaluating a claim of extraneous jury contact
requires that “ ‘any private communication, contact or
tampering, directly or indirectly, with a juror during a
trial about the matter pending before the jury . . . [be]
deemed presumptively prejudicial’ ” unless the contact was
pursuant to the directions and instructions of the trial
court with complete knowledge by both parties. Lenz v.
Warden, 267 Va. 318, 328, 593 S.E.2d 292, 298 (2004)
(quoting Remmer, 347 U.S. at 229).
This presumption, however, is not conclusive. Id.
The prosecution has the burden “to establish, after notice
to and hearing of the defendant, that such contact with the
juror was harmless to the defendant.” Id. We explained in
Lenz that “[t]he Remmer presumption of prejudice arises
upon a showing of two elements: that an extraneous contact
with or by a member of the jury took place and that such
contact was ‘about the matter pending before the jury.’ ”
267 Va. at 329, 593 S.E.2d at 298 (quoting Remmer, 347 U.S.
at 229).
Clearly, juror Gibson’s communication with his wife
about the headlines in the newspaper was an improper
contact with a third party about the matter pending before
the jury. However, it is debatable whether his
24
communication, or attempted communication, of the content
of the newspaper headlines to the other jurors constituted
extraneous jury contact. Instead, it is analogous to
jurors’ reading or hearing news media reports about the
criminal trial in which they are sitting.
In Thompson v. Commonwealth, 219 Va. 498, 502-03, 247
S.E.2d 707, 709 (1978), we addressed an incident in which
two jurors in a criminal trial admitted that they had read
a newspaper article concerning the evidence and the
defendant. We enumerated the following principles for
resolving whether that kind of jury conduct denied a
defendant of a fair trial:
First, the influence of newspaper articles or
other publicity during a criminal trial may be of such
a nature as to deprive a defendant of a fair trial.
Second, jurors serving in a criminal case may not,
during the trial, properly read newspaper stories or
listen to media reports discussing the proceedings.
The basis for this elementary proposition is that a
juror’s information about the case should come only
from the evidence presented at trial and not from any
extraneous source. Third, upon a showing that such
jurors have read or heard news accounts of the
proceedings, the test to be used by the trial court in
determining if a mistrial or a new trial should be
ordered is whether under the circumstances there has
been interference with a fair trial. Fourth, mere
reading or hearing news accounts of the trial while it
is in progress does not in every case amount to
prejudicial misconduct by the jury as a matter of law.
Some publicity to which jurors have been exposed may
be inherently prejudicial while in other cases inquiry
will be necessary to ascertain whether the information
“may have effectively prejudiced the jury in its
deliberation.” Fifth, the decision whether such media
25
information brought to the jury’s attention results in
prejudice to the defendant rests in the sound
discretion of the trial court. And, sixth, because
there can be no fixed rule which defines what
constitutes prejudicial interference with a fair
trial, each case must be decided on its special facts.
Id. at 500, 247 S.E.2d at 708 (internal citations omitted).
Our holding in Thompson requires a trial court to
determine whether a juror’s exposure to media coverage of
the proceedings interfered with a fair trial. Unlike
extraneous juror contact, a juror’s reading or hearing news
accounts about a criminal trial is not presumptively
prejudicial. For purposes of this case, we will, however,
apply the test set out in Remmer and Lenz and assume, as
did the Court of Appeals, that juror Gibson’s contact with
his wife about the newspaper article reporting that the
defense had moved for a mistrial because the jurors were
taking notes, as well as his communication, or attempted
communication, of that information to other jurors, was
“sufficient to shift the burden to the Commonwealth” to
prove the contact was harmless to Riner. Riner, 40 Va.
App. at 468, 579 S.E.2d at 685.
We conclude that the Commonwealth carried its burden.
First, juror Gibson was discharged from jury service; so he
did not participate in the deliberations that resulted in
the guilty verdict. See Gray v. Commonwealth, 233 Va. 313,
26
339, 356 S.E.2d 157, 171 (1987) (finding no prejudice where
an alternate juror who failed to respond to voir dire
question about family members employed in law enforcement
was released from the panel before the case was submitted
to the jury and did not participate in the jury’s
deliberations). That is a significant fact distinguishing
the present case from many other cases involving juror
misconduct. See, e.g., Jackson v. Commonwealth, 267 Va.
178, 197, 590 S.E.2d 520, 531 (2004) (after conclusion of
trial, alternate juror stated that she had heard jurors
discussing the case before the close of the evidence);
Jenkins v. Commonwealth, 244 Va. 445, 460, 423 S.E.2d 360,
370 (1992) (post-trial interview of jury foreman revealed
that jurors had discussed defendant’s parole eligibility if
he received a life sentence); Haddad v. Commonwealth, 229
Va. 325, 327, 329 S.E.2d 17, 18 (1985) (misconduct during
lunch break by juror who later became foreman of the jury).
Second, only one juror heard or remembered juror
Gibson’s comment about the specific newspaper article
discussing a defense motion for a mistrial. Next, the
questioning of the jurors revealed that they were not
influenced by juror Gibson, actually attempted to avoid him
so they would not hear his comments, and still had open
minds about the case. Finally, after releasing juror
27
Gibson, the trial court not only instructed the jurors to
disregard anything that juror Gibson had said but also told
them that some of his comments were not correct. Unless
the record shows otherwise, and it does not in this case,
we presume that a jury follows an explicit cautionary
instruction given by the trial court. See LeVasseur v.
Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983).
In summary, the extraneous juror contact was harmless to
Riner. Thus the trial court did not err in denying Riner’s
motion for a mistrial based on “unauthorized third party
contact.”
2. OTHER MISCONDUCT
Before determining whether juror Gibson’s “other
misconduct” warranted a mistrial, we reiterate several
applicable principles. “[T]he mere fact of juror
misconduct does not automatically entitle either litigant
to a mistrial.” Robertson v. Metropolitan Washington
Airport Auth., 249 Va. 72, 76, 452 S.E.2d 845, 847 (1995)
(citing Haddad, 229 Va. at 330, 329 S.E.2d at 20); see also
Jackson, 267 Va. at 199, 590 S.E.2d at 532. As the party
moving for a mistrial, Riner had the burden to establish
that juror misconduct “probably resulted in prejudice.”
Robertson, 249 Va. at 76, 452 S.E.2d at 847. The trial
court, in the exercise of its discretion, makes that
28
determination. Id. Here, the trial court properly
investigated the misconduct when it was brought to its
attention. See id. (trial court abuses its discretion by
ruling on motion for mistrial without investigating the
alleged misconduct when it is discovered after the jury is
discharged). Finally, we have generally limited findings
of prejudicial juror misconduct to events that occurred
outside the jury room and that interjected information
about the case that was not admitted into evidence.
Caterpillar Tractor Co. v. Hulvey, 233 Va. 77, 83, 353
S.E.2d 747, 751 (1987).
Applying these principles, we conclude that the trial
court did not abuse its discretion in denying Riner’s
motions for a mistrial based on the “other misconduct” by
juror Gibson. First, as the Court of Appeals noted, there
is no evidence that any juror was aware of juror Gibson’s
brief contact with the office of the Commonwealth’s
Attorney or his efforts to resolve an apparent conflict in
the evidence. Riner, 40 Va. App. at 465, 579 S.E.2d at
684. Thus, Riner has not shown how he was prejudiced by
that incident since juror Gibson did not participate in the
jury deliberations.
Next, after learning about the anonymous note directed
to the Commonwealth’s Attorney, Riner did not move for a
29
mistrial. Thus, he cannot now be heard to complain about
that incident. Rule 5:25.
Continuing, when Riner moved for a mistrial after
juror Gibson was released from jury service, Riner was not
concerned about the two jurors to whom juror Gibson had
been making comments while in the jury box. Instead, Riner
based his motion on unknown comments that juror Gibson
might have been making in the jury room. At that point,
the nature of those comments was not known and the trial
court had discharged juror Gibson. Thus, Riner failed to
demonstrate how he was prejudiced.
Finally, when Riner renewed his motion for a mistrial
after the eight additional jurors had been questioned, he
offered only three reasons in support of the motion: (1)
juror Gibson’s comment about the exhibit showing the pearl
ring; (2) juror Gibson’s speculation that Denise might have
been raped; and (3) the newspaper article about the defense
mistrial motion.9 We have already dealt with the third
reason. As to the first reason, Riner voiced no concern
about the juror who heard the comment about the pearl ring
when he moved for a mistrial after juror Gibson had been
questioned. Nevertheless, upon considering the nature of
9
We do not consider grounds for a mistrial that were
not raised before the trial court. See Rule 5:25.
30
that comment as well as juror Gibson’s speculation that
Denise might have been raped, we conclude that Riner did
not establish that juror Gibson’s misconduct probably
resulted in prejudice to Riner. See Haddad, 229 Va. at
330, 329 S.E.2d at 20. As we previously explained, the
trial court discharged juror Gibson before the jurors began
their deliberations; the jurors were not influenced by
juror Gibson but found him annoying; they remained able to
listen to the evidence with open minds; and the trial court
carefully instructed the jurors to disregard anything juror
Gibson had said to them about the case.
C. PRIVATE PROSECUTOR
Prior to trial, the Commonwealth moved the trial court
to allow a private attorney, hired by Denise’s family, to
assist in the prosecution of the charges against Riner.
Over Riner’s objection, the trial court granted the motion.
Riner renewed his objection prior to trial and again in a
post-trial motion to set aside the verdict. He now assigns
error to the trial court’s permitting a private attorney to
participate and assist in the prosecution of the case.
Riner asserts that the attorney should have been barred
from serving as a private prosecutor because of an alleged
conflict of interest and because the attorney improperly
became “de facto lead counsel” for the Commonwealth. He
31
also urges this Court to abolish the use of private
prosecutors.
The private prosecutor had a conflict of interest,
according to Riner, because the law firm in which he was a
partner represented the parent company of the life
insurance company issuing the policy on Denise’s life.
Riner based that assertion on information contained in the
2000 edition of a publication listing law firms and their
representative clients. The private prosecutor, however,
avowed to the trial court that he had performed a conflict-
of-interest check and that neither he nor his firm
currently represented either the parent company or its
subsidiary, despite the listing in the publication. The
company issuing the life insurance policy had initiated an
interpleader action in federal court regarding the life
insurance proceeds, but the private prosecutor’s law firm
did not represent the parent company or any other party in
that proceeding. The private prosecutor acknowledged that
his firm may represent insureds of the parent company but
argued the client, in that situation, is the insured, not
the insurance company. He also admitted that his firm had
represented the parent company about 10 years prior to the
present trial.
In Cantrell v. Commonwealth, 229 Va. 387, 392, 329
32
S.E.2d 22, 26 (1985), we stated that “[t]he common-law
right of a crime victim, or of [the victim’s] family, to
assist the prosecution with privately employed counsel is
not absolute, but lies within the discretion and continuing
control of the trial court.” However, a private prosecutor
who has “a civil interest in the case so infects the
prosecution with the possibility that private vengeance has
been substituted for impartial application of the criminal
law, that prejudice to the defendant need not be shown.”
Id. at 394, 329 S.E.2d at 26. In that situation, a
defendant’s due process rights under Article I, § 11 of the
Constitution of Virginia are violated. Id. at 394, 329
S.E.2d at 26-27.
The trial court, in the exercise of its discretion,
must determine whether the private prosecutor had a
conflict of interest. That determination in this case was
factual and depended on whether the private prosecutor
and/or his law firm represented either the parent company
of the insurance company issuing the life insurance policy
on Denise’s life or the insuring company itself. The trial
court accepted the representations of the private
prosecutor that he had checked for any conflict of interest
and found none. We agree with the Court of Appeals that
the trial court “was entitled to credit [the private
33
prosecutor’s] representations” over the information
contained in a publication entry listing the parent company
as a representative client of the firm. Riner, 40 Va. App.
at 473, 579 S.E.2d at 687. We reach this conclusion even
though, as Riner demonstrated at a post-trial hearing, the
2001 version of the publication contained the same
information. The trial court’s factual findings on this
issue were not plainly wrong or without evidence to support
them. Thus, they are binding on appeal. Mercer v.
Commonwealth, 259 Va. 235, 243, 523 S.E.2d 213, 217 (2000).
Riner further argues that the private prosecutor
became the “de facto lead counsel” by delivering the
opening statement; actively participating in objections,
motions, and bench conferences; conducting the direct
examination or cross-examination of expert witnesses; and
presenting argument on jury instructions. He claims that
the private prosecutor controlled the presentation of the
Commonwealth’s evidence of arson, which was the means by
which it proved the murder charge. In other words, Riner
contends that the public prosecutor did not remain in
control of the case.
In Cantrell, we explained the role of a private
prosecutor:
34
His role is more limited than that of the public
prosecutor. By the weight of authority, he may not
initiate a prosecution or appear before the grand
jury; he may appear only by leave of the trial court;
he may participate only with the express consent of
the public prosecutor; he may make a closing jury
argument only in the court’s discretion; and he may
take no part in a decision to engage in plea
bargaining, deciding the terms of a plea bargain, or a
decision to accept a plea of guilty to a lesser crime
or to enter a nolle prosequi. Although there is no
arbitrary limitation as to the proportion of work
which may be done by a private prosecutor, the public
prosecutor must remain in continuous control of the
case.
229 Va. at 393, 329 S.E.2d at 26 (internal citations
omitted).
Riner does not suggest that the private prosecutor
engaged in any prohibited activities but only that he
dominated the case. However, upon reviewing the record, we
cannot say that the trial court abused its discretion with
regard to the level of participation by the private
prosecutor. It is true that his efforts focused on proving
the arson charge; indeed arson was one of the areas in
which he had considerable experience in the practice of
law. However, we agree with the Court of Appeals,
“[p]ermitting private prosecutors to handle only innocuous
witnesses and evidentiary matters would effectively
abrogate the common-law principle that still permits their
appointment.” Riner, 40 Va. App. at 474, 579 S.E.2d at
688. We conclude that the public prosecutor, not the
35
private prosecutor, “remain[ed] in continuous control of
the case.” Cantrell, 229 Va. at 393, 329 S.E.2d at 26.
Finally, we reiterate that “[t]he policy arguments
advanced by [Riner] for a total prohibition of privately
employed prosecutors may have a sound basis in
considerations of public policy, but we think it advisable
to leave to the General Assembly such a basic change in the
long-established common law of Virginia.” Id. at 392, 329
S.E.2d at 25. Nor do we believe that the General
Assembly’s amendment of Code § 19.2-155 in 1996 reflects
any preference on the part of the General Assembly to
restrict the private bar from appearing as prosecutors.
Contrary to Riner’s assertion, the statute cannot be viewed
as a change in the common law allowing the use of private
prosecutors. Accordingly, we decline Riner’s suggestion
that we should overrule Cantrell and abolish the right of a
crime victim, or the victim’s family, to employ private
prosecutors to assist the Commonwealth. Such a change in
our common law is for the General Assembly to make, rather
than the courts.
For all these reasons, we conclude that the trial
court did not err in permitting the private attorney to
assist in the preparation and prosecution of the charges
against Riner nor in the level of his participation allowed
36
by the court. Both matters were within the discretion and
continuous control of the trial court. See Cantrell, 229
Va. at 393, 329 S.E.2d at 26.
D. HEARSAY EVIDENCE
Two of Riner’s assignments of error concern the trial
court’s admitting hearsay statements into evidence. The
trial court allowed the admission of double hearsay by
permitting a witness to testify about a threat made by
Riner to Denise, as related by Denise to the witness. The
other hearsay evidence about which Riner complains
concerned an entry in a pawn shop journal that the trial
court admitted without any testimony from the employee who
made the entry.
Before addressing the hearsay issues before us, we
note that, subsequent to oral argument before this Court,
the Supreme Court of the United States decided Crawford v.
Washington, ___ U.S. ___, 124 S.Ct. 1354 (2004). In that
case, the prosecution had played for the jury the tape-
recorded statement made to the police by defendant’s wife,
who was at the scene of the crime, but the defendant had
not had an opportunity for cross-examination because the
defendant’s wife was unavailable as a trial witness due to
the invocation of marital privilege. Id. at ___, 124 S.Ct.
at 1357. For purposes of determining when a prior
37
statement by an unavailable declarant may be admitted into
evidence without violating the Confrontation Clause, the
Supreme Court drew a distinction between hearsay statements
that are “testimonial” and those that are “non-
testimonial.” Id. at ___, 124 S.Ct. at 1374. The Court
held that, “[w]here testimonial evidence is at issue, . . .
the Sixth Amendment demands what the common law required:
unavailability [of the declarant] and a prior opportunity
for cross-examination [by the defendant].” Id. The Court
declined to provide a comprehensive definition of
“testimonial” hearsay but offered some examples of the
“core class of ‘testimonial’ statements”: ex parte
testimony at a preliminary hearing, statements obtained
during custodial police interrogations, affidavits, and
“ ‘statements that were made under circumstances which
would lead an objective witness reasonably to believe that
the statement would be available for use at a later
trial.’ ” Id. at ___, 124 S.Ct. at 1364.
In light of the decision in Crawford and its potential
impact on the hearsay issues in this appeal, we requested
letter briefs from the parties addressing whether the
decision applied to or affected the hearsay issues. In
response, both Riner and the Commonwealth agreed that
Crawford has no bearing on whether the trial court properly
38
admitted the pawn shop journal because, as a business
record, it was not “testimonial” hearsay. Indeed, the
Court in Crawford indicated that business records are a
type of hearsay “that by their nature [are] not
testimonial.” Id. at ___, 124 S. Ct. at 1367. With regard
to the double hearsay concerning the threat, Riner stated
that, “[a]t the time [the witness] testified, there was no
reason to probe whether, in the context of Denise’s
statement to [the witness], Denise (the declarant) would
reasonably have expected her statement to be used
prosecutorially.” In the absence of such evidence, Riner
admitted that he cannot assert that Denise’s statement to
the witness was “testimonial” hearsay within the rule
announced in Crawford. Thus, in light of the parties’
admissions, we conclude that the decision in Crawford is
not relevant to the hearsay issues before us. We turn now
to those specific issues.
1. DOUBLE HEARSAY
The Commonwealth called several witnesses to testify
about the relationship between Riner and Denise and to show
that Riner had threatened to take the children and never
let Denise see them if Denise separated from him. When the
Commonwealth called Donna Brickey to provide such
testimony, Riner objected and asked for a bench conference.
39
Based on information obtained from an insurance
investigator’s notes, Riner believed Brickey would testify
that Denise had told her about an incident in the early
1990s when Riner told Denise he would kill her if she ever
attempted to take the children away from him.
Riner first objected on the basis that the incident
was too remote in time, but the Commonwealth proffered that
Riner had made the threat within the year before the fire.
Riner then stated, “It’s double hearsay; . . . [i]t doesn’t
show [Denise’s] state of mind.” The Commonwealth
responded, “[A]ny threats made by the defendant that [were]
communicated to the decedent [are] admissible to show the
relationship of the parties, show his motive and his
intent.” After hearing further argument on the issue, the
trial court admitted the testimony, ruling that “[i]t
certainly shows threats of violence in the relationship
between the parties; state of mind of the accused.”
Brickey then testified, and the Commonwealth asked
whether Denise ever expressed any concerns about separating
from Riner. Brickey responded, “Well, [Denise] did say
that [Riner] had told her that if she tried to leave him
that he would take the kids away and she would never see
them again.” The Commonwealth then asked Brickey whether
Denise had told her about any threats by Riner. Brickey
40
answered, “[Denise] said that [Riner] told her that if she
tried to leave him and take the kids that he would kill
her.”
On appeal, Riner asserts that the trial court erred in
admitting Brickey’s testimony about his threat to kill
Denise. He argues that the testimony contained double
hearsay and that, to be admissible, “both the primary
hearsay declaration and each hearsay declaration included
within it must conform to a recognized exception to the
hearsay rule.” West v. Commonwealth, 12 Va. App. 906, 910,
407 S.E.2d 22, 24 (1991). We agree that the testimony
contained double hearsay and with the principle stated in
West. However, we find that Riner waived this claim.
During argument on his objection to Brickey’s double
hearsay testimony, Riner asserted that the statement at
issue was inadmissible because Denise’s telling Brickey
about the threat did not show Denise’s state of mind. That
objection obviously addressed the second level of hearsay,
i.e., when Denise repeated the threat to Brickey. The
trial court admitted the testimony, ruling that “[i]t
certainly shows threats of violence in the relationship
between the parties; state of mind of the accused.”10 At
10
To the extent that the Court of Appeals found that
the trial court had ruled that Brickey’s statement was
41
that point, Riner asked the trial court, “What about the
second part, Judge, the stuff from the early 90’s?” Riner
was referring to portions of Brickey’s anticipated
testimony that pertained to threats allegedly made by Riner
to Denise many years ago. The trial court concluded that
those statements were not admissible because of their
remoteness.
Significant to this appeal is the fact that Riner did
not at that juncture in the trial remind the court that it
had not ruled on the admissibility of both levels of the
double hearsay contained in Brickey’s testimony.
Specifically, the trial court never decided whether the
second level of hearsay fell within a recognized exception
to the hearsay rule. The trial court dealt with only the
first level of hearsay and concluded that Riner’s threat to
Denise was admissible because it demonstrated his state of
mind.
Riner’s failure to renew his objection or bring to the
trial court’s attention the fact that it had not ruled on
his objection challenging the second level of hearsay is
analogous to the situation addressed by this Court in
Green, 266 Va. 81, 580 S.E.2d 834. As already explained,
admissible to show Denise’s state of mind, that finding was
in error. The trial court did not make such a ruling.
42
the defendant there did not renew his change of venue
motion, previously taken under advisement by the trial
court, before the jury was empanelled and sworn, nor did he
remind the court that it had not ruled on the motion. Id.
at 94, 580 S.E.2d at 842. We refused to address the
defendant’s assignment of error that the trial court had
erred in refusing to grant a change of venue because the
defendant had waived the issue. Id. at 95, 580 S.E.2d at
842.
We reach the same result here. Riner’s objection to
Brickey’s testimony focused on the second level of the
hearsay. He claimed that Denise’s repeating the threat to
Brickey did not fall within an exception to the hearsay
rule, thus making the entire statement inadmissible. See
West, 12 Va. App. at 910, 407 S.E.2d at 24. Riner did not
challenge both levels of the hearsay nor did he need to do
so. However, by failing to bring to the trial court’s
attention the fact that it had ruled only on the
admissibility of the primary hearsay in the statement,
Riner did not afford the trial court the opportunity to
rule intelligently on the issue now before us. See Johnson
v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002)
(trial court must have “an opportunity to rule
intelligently on a party’s objections,” thereby “avoid[ing]
43
unnecessary mistrials or reversals”). In that
circumstance, the issue is waived on appeal.11 See Rule
5:25; Lenz, 261 Va. at 463, 544 S.E.2d at 306 (failure to
request ruling on pretrial motion waived issue on appeal);
Hoke v. Commonwealth, 237 Va. 303, 306, 377 S.E.2d 595, 597
(1989) (failure to renew change of venue motion waived the
issue under Rule 5:25); cf. Horner v. Dep’t of Mental
Health, 268 Va. 187, 194, 597 S.E.2d 202, 206 (2004)
(failure to assign cross-error on an issue the Court of
Appeals did not address waives further appellate review of
the issue).
2. PAWN SHOP JOURNAL
As already stated, Riner sold jewelry belonging to
Denise after the fire. The Commonwealth called Cheryl A.
Brown, manager of the pawn shop where Riner sold the items,
11
In the letter brief, Riner also argues that
Brickey’s hearsay testimony violated his rights under the
Confrontation Clause because the hearsay neither fell
within a “firmly rooted hearsay exception” nor bore
“particularized guarantees of trustworthiness” as required
by Ohio v. Roberts, 448 U.S. 56, 66 (1980). We conclude
that Riner waived the constitutional argument he now makes.
When he objected to Brickey’s testimony at trial, he relied
only on state law hearsay grounds in support of his
objection. Riner did not mention the Sixth Amendment or
the Confrontation Clause. Under this Court’s
contemporaneous objection rule, see Rule 5:25, we do not
consider a constitutional argument raised for the first
time on appeal. See Johnson v. Commonwealth, 267 Va. 53,
71, 591 S.E.2d 47, 57 (2004); Cherrix v. Commonwealth, 257
Va. 292, 308 n.3, 513 S.E.2d 642, 652 n.3 (1999).
44
to testify about the transaction. Brown remembered an
occasion when an investigator from the Wise County
Sheriff’s Department came to the shop in search of some
jewelry. The investigator was accompanied by some
individuals that Brown later learned were Denise’s sisters.
According to Brown, Denise’s sisters “immediately”
identified three of Denise’s rings in a glass case
containing “maybe a thousand” rings.
Brown explained the legal requirements in Tennessee
for pawn shop transactions. The seller or pawnor must
present valid photographic identification, and the pawn
shop must record the name, address, and other information
about the pawnor as well as information about the items
pawned or sold. Continuing, Brown testified that an entry
in a journal kept in the regular course of the pawn shop’s
business showed that, on March 11, 1999, an individual by
the name of Charles Douglas Riner, with a Tennessee
driver’s license bearing an address of 159 Bear Drive,
Bluff City, Tennessee, sold three rings, four pocket
watches, and other assorted merchandise for the sum of
$230. The number assigned to that transaction corresponded
to the number on the rings identified by Denise’s sisters.
Upon learning during Brown’s testimony that she had
not personally handled the transaction at issue, Riner
45
moved to strike her testimony and objected to the
introduction of the journal into evidence. With regard to
the hearsay issue before us, Riner stated that the journal
was not admissible because Brown only approved the amount
to pay Riner for the jewelry and did not make the entry
into the journal, and because the Commonwealth had not
established that the actual entrant was unavailable to
testify. After hearing Riner’s objection, the trial court
allowed Brown to testify in more detail about the entrant.
Brown stated that the employee who made the relevant entry
in the pawn shop journal was 79 years of age and was “off
on sick leave” because she had “suffered a back injury” and
was “unable to get up right now.” After hearing this
additional evidence, Riner renewed his hearsay objection.12
Although the trial court stated, “I don’t know whether
she’s in the hospital or is available or not,” it
ultimately allowed the introduction of the pawn shop
journal. The Court gave the following explanation for its
ruling:
I think it’s relevant, I’m going to allow it and
overrule your motion and find it to be an exception to
the hearsay rule under the Shopbook Rule, the business
records kept. I think the fact that this is even
12
Riner also objected to the admission of the journal
on grounds of relevancy, but that issue in not before us on
appeal.
46
overwhelmingly better because of the fact that this
woman . . . Apparently, they, in Tennessee they put a
lot of requirements and restrictions and legal
requirements on them in order to keep their records
correct and I think the records show total
trustworthiness and total . . . Tennessee is looking
over their shoulder very carefully at these pawn shops
and loan shops.
Later, during Riner’s testimony, he admitted that he
had sold a bag of what he described as “scrap jewelry” to
the pawn shop in Bristol, Tennessee and used his driver’s
license as identification during the transaction.
According to Riner, he found the jewelry, after moving to
Bluff City, Tennessee, in a zippered bag that he had
salvaged out of a safe kept in the basement of the burned
house in Coeburn. Riner denied having ever seen the three
rings that Denise’s sisters identified. He did not,
however, deny that the three rings were part of the items
he had sold to the pawn shop; instead, he stated, “I can’t
say they were or weren’t.” He also admitted that an
employee at the pawn shop “went through each individual
item separately.”
On appeal, Riner argues that the trial court erred in
admitting the pawn shop journal because the Commonwealth
failed to prove that the individual who entered the
relevant information in the journal was unavailable to
47
testify at trial.13 The Court of Appeals rejected this
argument, finding that the “evidence in the record supports
a finding that the employee who made the entry in the pawn
shop’s records was unavailable because she was out of work
with a back injury that left her ‘unable to get up’ at the
time of trial.” Riner, 40 Va. App. at 478, 579 S.E.2d at
690. We agree with that conclusion. Because the trial
court’s factual finding that the entrant was not available
to testify is supported by the evidence, we conclude that
the court did not err in admitting the pawn shop journal.14
E. SUFFICIENCY OF THE EVIDENCE
To prove arson, as with any criminal charge, the
Commonwealth must establish beyond a reasonable doubt both
the corpus delicti and criminal agency. Cook v.
Commonwealth, 226 Va. 427, 431, 309 S.E.2d 325, 328 (1983)
13
Riner also asserts on brief that he was denied the
right to cross-examine the entrant. However, he did not
make a constitutional objection at trial with regard to the
admission of the pawn shop journal. We will not consider a
constitutional argument raised for the first time on
appeal. See Johnson, 267 Va. at 71, 591 S.E.2d at 57;
Cherrix, 257 Va. at 308 n.3, 513 S.E.2d at 652 n.3.
14
The parties, the trial court, and the Court of
Appeals viewed the unavailability of the entrant as a
requirement for admission of the pawn shop journal under
the business records exception to the hearsay rule. For
that reason, we treat the unavailability requirement as the
“law of the case.” However, we intimate no view in today’s
decision whether unavailability of the entrant is indeed a
requirement under the business records exception.
48
(citing Jones v. Commonwealth, 103 Va. 1012, 1021, 49 S.E.
663, 666 (1905)). The corpus delicti of arson “must
consist of proof that the fire was of incendiary, rather
than of accidental origin.” Id. Here, Riner challenges the
sufficiency of the evidence only with regard to the corpus
delicti, i.e., whether the fire was of incendiary origin.
Notably, Riner does not challenge on appeal the sufficiency
of the evidence to support the jury’s determination that he
was the criminal agent. In other words, Riner implicitly
agrees that the Commonwealth presented sufficient evidence
to establish beyond a reasonable doubt that, if the fire
was of incendiary origin, he was the criminal agent who
started the fire.
With regard to the corpus delicti, a defendant has the
benefit of a presumption that the fire was caused by
accident. Id. (citing Simmons v. Commonwealth, 208 Va.
778, 782, 160 S.E.2d 569, 572-73 (1968)). That presumption
is, however, rebuttable. Knight v. Commonwealth, 225 Va.
85, 89, 300 S.E.2d 600, 602 (1983). “Whether the origin of
a fire was accidental or incendiary is a question of fact,
and resolution of that question may, and often must, turn
upon the weight of circumstantial evidence.” Id. Such is
the present case.
49
The Commonwealth’s evidence regarding the incendiary
origin of the fire came primarily from two individuals,
Clark D. Davenport and John D. Walker, both of whom
testified as experts in the field of investigating the
origin and cause of fires. Davenport and Walker each
inspected the Riner home after the fire and concluded that
the fire was of incendiary origin.
Specifically, Walker opined that the “fire started at
the south end of the home” where the living room and master
bedroom were located, and that it “was caused by an
intentional human act meaning it was an incendiary or an
arson fire.” In his opinion, the fact that the floor of
the front porch and the “uprights” in the porch were
completely consumed by the fire was unusual and indicated
“a tremendous amount of fire at the whole front end of that
home.” Because of the extent of burning on the floor of
the Riner house and the burn patterns there, Walker further
opined that “liquid accelerant” had been poured on the fire
and that the liquid “ignited and burned the floor first
before everything else fell down on top of the floor.”
Walker testified that he eliminated any potential
accidental cause of the fire and found no indication that
the fire started in the electrical panel box because there
was no evidence of arcing there. Even though an analysis
50
of debris samples that Walker had collected from the fire
scene contained no evidence of liquid accelerant residue,
Walker did not alter his conclusions.
Similarly, Davenport opined that “deep seated charring
of burn patterns in areas on the floor of the master
bedroom” were caused by “burning of an ignitable liquid
that had been poured on the floor.” During his
investigation of the fire, Davenport found evidence of
newspaper strips in several areas of the house, including
the floor in the master bedroom where Denise’s body was
found. Davenport opined that the newspapers were “used as
an accelerant to spread the fire.” He stated that “the
newspapers in conjunction with an ignitable liquid were
spread throughout the first floor of the dwelling in the
areas where [he] determined that a flammable liquid or
ignitable liquid patterns were discovered.”
Davenport further testified that he found no evidence
that would cause him to conclude that the origin of the
fire could not be determined or was accidental. He also
discounted a theory advanced by one of the defense’s expert
witnesses that the fire had been caused by a short circuit
in a baseboard heater. In Davenport’s opinion, the
evidence of short-circuiting that he found in the wiring
that remained in the house was the result of the fire and
51
not the cause of it. When asked what kind of analysis he
performed to eliminate other possible sources of ignition,
Davenport responded, “In conjunction with Mr. Riner’s
statements to me, as far as the condition of the house,
smoking habits, electrical problems, coupled with what I
observed at the scene, I was able to eliminate the natural
or accidental fire causes verses [sic] what I saw; glaring
evidence of an ignitable liquid poured and burned.”
It is true, as Riner argues, that other expert
witnesses who investigated the fire, some of whom testified
on behalf of the Commonwealth, opined that the origin of
the fire could not be determined. It is also true that
Riner introduced evidence showing that the fire had been
caused by a short circuit in a baseboard heater. But, as
Riner conceded during oral argument, the conflicting
evidence created a “credibility battle” among the experts.
“ ‘Conflicting expert opinions constitute a question of
fact . . . .’ ” Mercer, 259 Va. at 242, 523 S.E.2d at 217
(quoting McCaskey v. Patrick Henry Hospital, 225 Va. 413,
415, 304 S.E.2d 1, 2 (1983)). In that situation, it is
within the province of the finder of fact, in this case the
jury, “ ‘to assess the credibility of the witnesses and the
probative value to be given their testimony.’ ” Id.
52
(quoting Richardson v. Richardson, 242 Va. 242, 246, 409
S.E.2d 148, 151 (1991)).
Viewing the evidence in the light most favorable to
the Commonwealth, as we must since it was the prevailing
party in the trial court, see Higginbotham, 216 Va. at 352,
218 S.E.2d at 537, we conclude that there was sufficient
evidence from which the jury reasonably could have inferred
that the fire was incendiary in origin. “When a fact-
finder has accepted the testimony of a qualified expert
witness, which negates every reasonable possibility that a
fire was of accidental origin, we cannot hold the evidence
insufficient, as a matter of law, to support a finding that
the fire was of incendiary origin.” Cook, 226 Va. at 432,
309 S.E.2d at 328. Accordingly, we hold that the trial
court did not err in finding the evidence of arson
sufficient to support the jury verdict.
III. CONCLUSION
For the reasons stated with regard to each of Riner’s
assignments of error, we find no error in the judgment of
the Court of Appeals. Thus, we will affirm that judgment
and Riner’s convictions.15
Affirmed.
15
In light of our decision, it is not necessary to
address the Commonwealth’s assignments of cross-error.
53
JUSTICE KOONTZ, with whom CHIEF JUSTICE HASSELL and JUSTICE
KEENAN join, dissenting.
I respectfully dissent. In my view, the record in
this case does not support the majority’s conclusion that
Charles Douglas Riner waived his objection to the admission
of the double hearsay testimony of Donna Brickey at issue
in this appeal. In the absence of such waiver, the record
clearly establishes that the erroneous admission of this
evidence was not harmless error. It is axiomatic that
under such circumstances Riner was denied a fair trial and
his convictions for the first degree murder of his wife,
Karen Denise Riner, and for arson must be reversed.
The majority correctly relates the context in which
the hearsay issue arose at Riner’s trial and the substance
of the testimony of Brickey, who was called as a witness by
the Commonwealth to relate the purported statements made to
her by Denise, prior to Denise’s death in the fire that
destroyed the Riners’ home. The Commonwealth sought to
establish the tempestuous relationship between Riner and
his wife in support of its theory of the case that the fire
was not accidental. Over Riner’s objection, Brickey was
permitted to testify that Denise had told her that Riner
had said that “if [Denise] tried to leave him and take the
kids that he would kill her.” Beyond question, Brickey’s
54
testimony was “double hearsay and thus doubly suspect”
because her testimony concerned a statement made by Denise,
one level of hearsay, recounting a statement made by Riner,
another level of hearsay. Service Steel Erectors Co. v.
International Union of Operating Engineers, 219 Va. 227,
236, 247 S.E.2d 370, 376 (1978). To be admissible, both
levels of hearsay must fall within a recognized exception
to the hearsay rule. West v. Commonwealth, 12 Va. App.
906, 909-10, 407 S.E.2d 22, 24 (1991). The majority agrees
that Brickey’s testimony constituted double hearsay and
that the principle established in West restricts the
admissibility of such testimony.
Riner objected to the admission of Brickey’s testimony
on the ground that “[i]t’s double hearsay; . . . [i]t
doesn’t show [Denise’s] state of mind.” Rule 5:25 requires
that an objection be made “with reasonable certainty” in
order to enable the trial judge to rule on the objection
intelligently and, thus, to avoid unnecessary reversal on
appeal. While admittedly Riner’s objection could have been
stated more precisely to assert that both levels of the
hearsay did not fall within a recognized exception to the
hearsay rule as required by West, the objection as stated
substantially complied with the requirements of Rule 5:25.
Overton v. Slaughter, 190 Va. 172, 179, 56 S.E.2d 358, 362
55
(1949) (“substantial compliance” with contemporaneous
objection rule found where objection was “sufficiently
broad to have given the trial court notice of the substance
of the objection”); Levine v. Levine, 144 Va. 330, 336-37,
132 S.E. 320, 322 (1926) (explaining that “it was not
intended that a strict compliance with the letter of the
[contemporaneous objection] rule should be necessary to
enable a litigant to ask [for] the consideration . . . of
an objection or exception which was plainly and manifestly
made in the trial court, and the grounds of which appear
from the ruling thereon by the trial court”). See also
Conquest v. Mitchell, 618 F.2d 1053, 1056 (4th Cir. 1980)
(finding that, under Virginia law, “if an objection is
raised in such a manner so as to give the trial court
notice of its substance, the rule will be deemed complied
with even though the objection could have been more
definitively given”).
In this case, the trial judge was not called upon to
rule upon the objection in a vacuum or without the
opportunity to rule intelligently. Riner’s objection
clearly called to the trial judge’s attention that
Brickey’s testimony contained “double hearsay” and that at
least one level, concerning Denise’s state of mind, was
inadmissible because it did not fall within a recognized
56
exception to the hearsay rule. While the trial judge did
not expressly rule on the admissibility of both levels of
hearsay contained in Brickey’s testimony, the judge
admitted Brickey’s entire testimony on the ground that her
testimony “shows threats of violence in the relationship
between the parties, state of mind of [Riner].”
The majority acknowledges that Riner did not need to
challenge both levels of hearsay contained in Brickey’s
testimony in order to invoke the principle stated in West
regarding the admission of double hearsay. And, indeed,
but for the double hearsay context in which it was
presented by Brickey’s testimony, Riner does not dispute
that one level of hearsay, the statement that he had
threatened to kill Denise if she left him and took the
couple’s children, would have been admissible as relevant
to show his state of mind and potential motive.
Nevertheless, the majority concludes that Riner waived his
objection to Brickey’s testimony because he failed to renew
his objection or “bring to the trial court’s attention” the
fact that it had not ruled on his objection challenging
Denise’s statement to Brickey. In effect, the majority
treats Brickey’s testimony as if it were divisible or
consisted of discrete parts, apparently because it
contained “double hearsay.” Brickey’s testimony that was
57
the subject of Riner’s objection, however, was not
susceptible to division. Brickey’s knowledge of Riner’s
purported threats of violence against Denise came to her
solely from Denise’s purported statement to her. Thus, it
was necessary that Brickey’s testimony include both levels
of hearsay in order for her testimony to convey anything
intelligible and relevant to the jury. The trial judge’s
ruling then necessarily resolved the issue of both levels
of hearsay contained in Brickey’s testimony by ruling that
her entire testimony was admissible.
The majority expressly and principally relies upon an
analogy it draws from the situation we addressed in Green
v. Commonwealth, 266 Va. 81, 93-95, 580 S.E.2d 834, 841-42
(2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1448 (2004),
to support its conclusion that Riner has waived his
objection to Brickey’s testimony. I respectfully disagree
with that analogy. In Green, the defendant’s change of
venue motion was taken under advisement. The defendant
subsequently did not renew his motion before the jury was
empanelled and sworn or remind the trial court that the
motion was still pending and that he wanted the court to
rule on it. Id. at 93-94, 580 S.E.2d at 841-42. We
concluded that the defendant had waived the issue regarding
the change of venue. Id. at 95, 580 S.E.2d at 842.
58
In the present case, however, the question whether to
admit Brickey’s double hearsay testimony was not the
subject of a pre-trial motion that Riner failed to renew at
the time Brickey testified. Rather, the objection was made
at the point at which the evidence was to be admitted at
Riner’s trial. There can be no doubt that Riner objected
to the admission of Brickey’s testimony on the ground that
Denise’s out-of-court statement to Brickey did not fall
within a recognized exception to the hearsay rule. When
the trial court ruled that Brickey’s entire testimony was
admissible, there was no need or occasion for Riner to
“renew” the objection just made. Indeed, Code § 8.01-384,
and cases construing it, not only expressly make such
objection “unnecessary,” but also indicate that the
objection was sufficient to preserve Riner’s right to
contest the trial court’s admission of the “double hearsay”
testimony on appeal.
In relevant part, subsection (A) of Code § 8.01-384
provides that:
Formal exceptions to rulings or orders of the
[trial] court shall be unnecessary . . . [and] it
shall be sufficient that a party, at the time the
ruling or order of the court is made or sought,
makes known to the court the action which he
desires the court to take or his objections to
the action of the court and his grounds
therefore; and, if a party has no opportunity to
object to a ruling or order at the time it is
59
made, the absence of an objection shall not
thereafter prejudice him on motion for a new
trial or on appeal.
Code § 8.01-384(A). Significantly, the statute also
expressly states that:
No party, after having made an objection or
motion known to the court, shall be required to
make such objection or motion again in order to
preserve his right to appeal, challenge, or move
for reconsideration of, a ruling, order, or
action of the court.
Id.
Cases applying this language clearly indicate that
once a party makes the trial court aware of its objection
to a particular ruling, there is no need for that party, as
a means of preserving its appeal rights, to subsequently
repeat the substance of its objections by noting a formal
exception. See, e.g., Ward v. Insurance Co. of North
America, 253 Va. 232, 233 n.1, 482 S.E.2d 795, 795 n.1
(1997) (citing Code § 8.01-384); Richmond Dept. of Soc.
Servs. v. Carter, 28 Va. App. 494, 497, 507 S.E.2d 87, 88
(1998) (plaintiff’s claim that defendant failed to preserve
standard of proof issue for appeal held “meritless” because
“[o]nce the objection was made at trial, the [defendant]
was not required to make it again to preserve the issue”
under Code § 8.01-384(A)); Brown v. Commonwealth, 23 Va.
App. 225, 229-30, 475 S.E.2d 836, 838-39 (1996) (where
60
arguments of defense counsel concerning admissibility of
hearsay evidence alerted the trial court to the possibility
of error and gave it the opportunity to take corrective
actions, arguments held sufficient as an objection to
preserve admissibility issue for appeal under Code § 8.01-
384).
In addition, the majority’s approach ignores the burden
of proof on a hearsay objection. When an objector draws the
trial court’s attention to the fact that the form of
proposed proof is hearsay, “the party attempting to
introduce a hearsay statement has the burden of showing the
statement falls within one of the exceptions.” Robinson v.
Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476 (1999); Doe
v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984)
(“ ‘One seeking to have hearsay declarations of a witness
admitted as an exception to the general rule must clearly
show that they are within the exception.’ ”), quoting
Skillen and Son, Inc. v. Rosen, 359 S.W.2d 298, 301 (Tex.
1962). Thus, once Riner made the hearsay objection it was
the Commonwealth’s burden to demonstrate the admissibility
of each “level” of hearsay involved.
In general it has been this Court’s practice to
recognize that a hearsay objection that is not fully argued
below before a ruling admitting proof is made will be
61
sufficient to bring the merits of the hearsay issue before
us. Thus, in Frank Shop, Inc. v. Crown Cent. Petroleum
Corp., 261 Va. 169, 174, 540 S.E.2d 897, 900 (2001), the
opponent raised a hearsay objection, the proponent
suggested that there were four theories involved, and the
trial court ruled to allow the putative hearsay into
evidence before the admission theories were even argued by
counsel. This Court proceeded to assess the evidence and
hold it inadmissible under the hearsay rule. Id. at 176,
540 S.E.2d at 901. See also Code § 8.01-384(A); Ward, 253
Va. at 233 n.1, 482 S.E.2d at 795 n.1; Carter, 28 Va. App.
at 497, 507 S.E.2d at 88; Brown, 23 Va. App. at 229-30, 475
S.E. 2d at 838-39.
While the trial court’s ruling expressly addressed
only the hearsay statement made by Riner to Denise, I am
unwilling to conclude that the trial court was unaware that
the effect of the ruling was to admit the hearsay statement
made by Denise to Brickey. The trial court surely
understood the significance of Riner’s “double hearsay”
objection. To require Riner to reiterate the argument
already made on the admissibility of the hearsay as between
Denise and Brickey and demand an express ruling from the
trial court on that issue was just as surely unnecessary.
Additionally, the view taken by the majority would place
62
every criminal defendant in the position of having to
request full and express rulings from the trial court on
every objection in order to avoid the waiver applied in
this case, a practice that is wholly impractical.
Though differing from the reasoning applied by the
majority, the Commonwealth contends that Riner has waived
his objection to the double hearsay evidence at issue on
two grounds. First, the Commonwealth asserts a waiver
because Riner did not object to the testimony of two
witnesses showing the discord in the Riners’ marital
relationship, and he had cross-examined one of those
witnesses regarding whether Denise had ever complained of
being physically abused by Riner. Second, the Commonwealth
asserts that Riner has not challenged the actual ruling of
the trial court, which was that the hearsay evidence was
admissible under an exception to show the state of mind of
Riner rather than Denise. Both assertions of waiver are
without merit.
With regard to the first, none of the other evidence
elicited by the Commonwealth or by Riner upon cross-
examination included the direct assertion that Riner had
ever threatened to kill Denise. There was no evidence of
physical abuse suffered by her. A death threat manifestly
63
is not the same character as a threat to withhold the
couple’s children in the event of a divorce.
With regard to the Commonwealth’s second assertion of
waiver, failure to challenge one level of hearsay within a
double hearsay statement would not constitute a waiver
because when a party objects that a proffered statement is
hearsay it is the burden of the proponent of the statement
to show that it is admissible. Where the notion that the
statement has two levels of hearsay has been presented to
the trial judge, it is the burden of the proponent of the
evidence to demonstrate to the judge that there is an
exception warranting receipt of both levels of the hearsay.
In this case, it is clear that at trial, in the Court of
Appeals, and presently in this appeal, Riner has not
focused on the fact that Brickey’s statement quotes Riner
(theoretically admissible as party admission or a statement
of Riner’s state of mind) but has pursued the objection to
the fact that Brickey’s testimony recounts an out-of-court
statement by Denise that does not fit a hearsay exception
(not an “excited utterance,” not within the admissible
state of mind doctrine in Virginia).
For these reasons, I am of opinion that a finding of
waiver of the issue regarding whether the trial court erred
in admitting the double hearsay testimony of Brickey is not
64
warranted and that the issue is properly before this Court
in this appeal. Accordingly, I will address the merits of
Riner’s assertion that Brickey’s testimony was erroneously
admitted against him at his trial.
In general terms, “hearsay is an out-of-court
statement offered to prove the truth of the matter asserted
and . . . hearsay includes testimony by a witness who
relates not what he knows personally but what others have
told him or what he has read.” Robinson v. Commonwealth,
258 Va. 3, 6, 516 S.E.2d 475, 476 (1999). “[H]earsay
evidence is inadmissible unless it falls within one of the
recognized exceptions to the hearsay rule, and . . . the
party attempting to introduce a hearsay statement has the
burden of showing the statement falls within one of the
exceptions.” Id., 516 S.E.2d at 476-77 (internal citation
omitted). Pertinent to the present case, we have stated
that “[g]enerally, [hearsay] statements made by a crime
victim that show the victim’s state of mind are admissible
as an exception to the hearsay rule, provided the
statements are relevant and probative of some material
issue in the case.” Clay v. Commonwealth, 262 Va. 253,
257, 546 S.E.2d 728, 730 (2001). “Evidence is relevant if
it tends to prove or disprove, or is pertinent to, matters
in issue.” Id. In the specific circumstance of a hearsay
65
statement purporting to show the state of mind regarding
the fear of a victim with respect to a death threat or
threat of violence made to the victim by the accused, the
hearsay statement of the victim is admissible to rebut
claims by the defense that the victim’s death was the
result of suicide, or where the defense admits some role in
the events causing the victim’s death, but contends that
the death was the result of an accident or an act of self-
defense. Id.; United States v. Brown, 490 F.2d 758, 770-71
(D.C. Cir. 1973). “When those defenses are not in issue
. . . the statement would become relevant only through ‘a
circuitous series of inferences.’ ” Hanson v.
Commonwealth, 14 Va. App. 173, 188, 416 S.E.2d 14, 23
(1992) (quoting Brown, 490 F.2d at 771).
Riner’s asserted theory of the case was that the fire
was accidental and that Denise’s death in that fire was
also accidental. This defense excludes an admission that
he accidentally caused the fire and obviously does not
involve a claim of suicide or self-defense. As previously
noted herein, but for the double hearsay context in which
it was presented by Brickey’s testimony, Riner does not
dispute that one level of the hearsay, the purported
statement that he had threatened to kill Denise if she left
him and took the children, was relevant to show his state
66
of mind and potential motive to commit the crimes for which
he was on trial. Rather, the thrust of Riner’s contention
is that the second level of hearsay, Denise’s statement to
Brickey, could only show that Denise’s state of mind was
fear and that state of mind was not relevant to any issue
in the case. Riner contends that Denise’s state of mind
was not probative of Riner’s state of mind because had
Riner possessed the motive and intent to kill her, “either
would have existed independent of [Denise’s] fear of him or
any other state of mind.” West, 12 Va. App. at 910, 407
S.E.2d at 24. Riner also finds support for his contentions
in Evans-Smith v. Commonwealth, 5 Va. App. 188, 211, 361
S.E.2d 436, 449 (1987). Noting that West and Evans-Smith
are factually similar to the present case, Riner asserts
that Denise’s statement did not comply with the
requirements of the state of mind exception to the hearsay
rule and was inadmissible.
In response, the Commonwealth contends that the trial
court properly admitted the statement to show Denise’s
state of mind under the state of mind exception to the
hearsay rule as enunciated in Clay. The Commonwealth
asserts that Brickey’s testimony showed a motive for Riner
to kill his wife once she declared her intent to divorce
him and to use his abuse of his step-son to prevent him
67
from obtaining custody of the couple’s children. The
Commonwealth further contends that the statement “showed
that Riner viewed the loss of his children on an equal
footing with the need to rectify his financial problems.”
The Commonwealth interprets Clay broadly and argues that
our holding there was not limited to cases in which there
is an asserted defense of self-defense, suicide, or
accidental death in which the accused admittedly played
some role. The Commonwealth’s position would essentially
permit the state of mind exception to consume the hearsay
rule. Denise’s fear of Riner, if such were the case, was
not relevant because Riner would have had the motives
suggested by the Commonwealth in this case regardless of
that state of mind on her part. Moreover, under Clay,
Denise’s statement recounting Riner’s threat was not
admissible under the state of mind exception to the hearsay
rule to rebut Riner’s assertion of accidental death because
Riner was not contending that the fire was the result of
his actions. Accordingly, the trial court erred in
admitting Brickey’s testimony.
Where, as here, the erroneous admission of evidence is
not of constitutional dimension, the standard for reviewing
the harm to the defendant, if any, is to consider whether
68
“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 the
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.”
Clay, 262 Va. at 260, 546 S.E.2d at 731-32 (quoting
Kotteakos v. United States, 328 U.S. 750, 764-65 (1946).
See Code § 8.01-678 (providing the statutory standard for
harmless error involving nonconstitutional error).
The record does not support the Commonwealth’s
assertion that Brickey’s testimony “was only a fraction of
the motive evidence against Riner” and, thus, any error in
admitting this testimony was harmless. To the contrary,
despite other evidence that the Riner’s marriage was
discordant, no other witness testified that Riner had ever
been physically abusive to Denise or had threatened her
with physical violence. Nor was the evidence of Riner’s
financial difficulties in itself indicative that he would
seek to profit from her death. Thus, the evidence that
Riner had once threatened to kill Denise if, as actually
transpired, she sought to end their marriage and separate
69
him from their children, was not merely cumulative of other
motive evidence.
It is a regrettable but well acknowledged fact that
numerous marriages in this Commonwealth terminate in
divorce. The suggested reasons for that fact are also
numerous. In such cases it is also regrettable but not
uncommon that the actual separation and divorce of a couple
is preceded by arguments and even threats of violence. In
this context, prior threats of violence or death become
especially significant where a spouse anticipating a
divorce is the alleged victim of a homicide. Indeed,
where, as here, such a spouse has related to another a
death threat made by her husband, and the specifics of that
threat comport with the subsequent events leading up to the
alleged victim’s death, the death threat essentially
becomes a lens through which the jury will focus on the
evidence and assess the rest of the prosecution’s case
against the accused. Under such circumstances, far from
having slight or no effect on the verdict, it “ ‘cannot [be
said], with fair assurance . . . that the judgment was not
substantially swayed by the error.’ ” Clay, 262 Va. at
260, 546 S.E.2d at 731-32 (quoting Kotteakos, 328 U.S. at
765). At the very least, in this case the error creates a
70
“grave doubt” and, accordingly, “the conviction cannot
stand.” Id.
For these reasons, I would hold that the trial court’s
erroneous admission of Brickey’s double hearsay testimony
concerning the death threat Riner allegedly made to Denise
was not harmless. Accordingly, I would reverse Riner’s
convictions for first degree murder and arson on this
ground and remand the case for a new trial if the
Commonwealth be so advised.
71