COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Clements
Argued at Chesapeake, Virginia
LESTER BERNARD LYNCH, JR.
OPINION BY
v. Record No. 0107-04-1 JUDGE ROBERT J. HUMPHREYS
AUGUST 16, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
L. Steven Emmert (Sykes, Bourdon, Ahern & Levy, P.C., on briefs),
for appellant.
Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Appellant Lester B. Lynch (“Lynch”) appeals his convictions, following a jury trial, for
first-degree murder, statutory burglary, robbery, and three counts of using a firearm in the
commission of a felony. On appeal, Lynch contends that the trial court erroneously admitted an
out-of-court statement under the adoptive admission exception to the hearsay rule. For the
reasons that follow, we disagree, and affirm his convictions.
I. BACKGROUND
Under familiar principles of appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom. Gonzales v. Commonwealth, 45 Va. App. 375, 378, 611 S.E.2d 616, 617 (2005)
(en banc). So viewed, the evidence in this case establishes the following.
On June 9, 2001, Belinda Scott was shot and killed inside her home by Lynch, “Tyreke”
Williams, and a third, unidentified man. After the shooting, Lynch and Tyreke “burst” into a
bedroom occupied by Belinda’s son, Ronald, and his friend, Tamika Reid. The third man
remained outside the bedroom door. Tyreke told Ronald to “get on his knees,” pointed a gun at
him, and told Tamika “not to move.” Tyreke then repeatedly hit Ronald on the head with the
gun and took some money out of Ronald’s pockets, while Lynch removed heroin and money
from a table in the room. The third man eventually told Tyreke and Lynch, “Let’s get out of
here.” The three men then “ran out of the house.”
Earlier that afternoon, Kenneth Parker was “hanging out” at Tyreke’s house with
Christopher, Tyreke’s brother. Kenneth saw Lynch drive up to the house in a black Acura.
Tyreke was in the passenger seat. Lynch got out of the car to talk to Christopher, and Tyreke
went across the street to get a gun. After he returned, Tyreke agreed to give Kenneth a ride
home. Kenneth then got into the Acura with Lynch, Tyreke, and the unidentified third man.
However, when Kenneth said that he needed to cross the Campostella Bridge, Lynch told him
that they were going on a “sting,” and they needed to “take care of [that] first.” Thus, Kenneth
got out of the car, and Lynch told him that they would return in about thirty minutes.
When the three men returned to Tyreke’s house, Kenneth noticed that Tyreke was
wearing a different shirt and had small bloodstains on his clothing. Tyreke carried something
into his house wrapped up in the shirt he had been wearing before the murder. Kenneth
followed. After entering the house, Tyreke went directly to an upstairs bathroom, and Kenneth
sat in the upstairs den. Lynch did not enter the house immediately, but remained in the driveway
speaking to the third man, who was “looking down at the ground like something was really
bothering him.”
When Tyreke left the bathroom, he knocked on Christopher’s door and told him that
“they had just shot a woman.” Kenneth joined the conversation and asked Tyreke, “man, what
you done got yourself into? You-all done shot a woman?” Tyreke responded, “yeah.” Kenneth
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asked, “where was you-all at?” Tyreke responded, “we went to Little Ronald’s house . . . to go
get him.” Kenneth then asked, “why would you-all go in and try to do something and rob him or
whatever when he cool with everybody?” Tyreke then said that he “don’t care who I get”
because “[m]y light’s due, my rent due, my girl getting ready to leave,” and he was “going to get
put out.”
As Kenneth, Christopher, and Tyreke were discussing whether the “skinny lady” who had
been shot was Ronald’s mother or sister, Kenneth heard someone climbing the stairs. As Lynch
reached the top of the stairs, he asked Tyreke “why he was telling [Kenneth and Christopher]
what they had just done.” Although Tyreke told Lynch that Kenneth was “cool” and would not
tell anyone, Kenneth said he would have “nothing to do with it,” and left the house. Kenneth
called Ronald’s cellular phone and spoke with Tamika, who was still hysterical over the events
she had just witnessed.
On September 5, 2001, a grand jury indicted Lynch for “feloniously [] kill[ing] and
murder[ing] Belinda Scott,” in violation of Code §§ 18.2-32 and 18.2-10, “us[ing], attempt[ing]
to use, or display[ing] a firearm while committing . . . [m]urder,” in violation of Code
§ 18.2-53.1, “break[ing] and enter[ing] in the nighttime while armed with a deadly weapon, the
dwelling house of Belinda Scott, with intent to commit robbery,” in violation of Code § 18.2-90,
“us[ing], attempt[ing] to use, or display[ing] a firearm while committing . . . [a]rmed [b]urglary,”
in violation of Code § 18.2-53.1, “rob[bing] Ronald Scott of U.S. currency, having some value,”
in violation of Code § 18.2-58, and, “us[ing], attempt[ing] to use, or display[ing] a firearm while
committing . . . [r]obbery,” in violation of Code § 18.2-53.1.
Before Kenneth testified at trial, the Commonwealth informed the court that it intended to
introduce the statement, “Why you telling them what we just did?” under the adoptive admission
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exception to the hearsay rule. The parties “argued the matter in chambers,” and, based on the
Commonwealth’s proffer, the court ruled that the statement was admissible.
The jury found Lynch guilty of all six counts as charged in the indictments, and the court
sentenced Lynch, in accordance with the jury’s recommendation, to thirty years for first-degree
murder, twenty years for statutory burglary, five years for robbery, five years for use of a firearm
while committing murder, five years for use of a firearm while committing robbery, and three
years for use of a firearm while committing burglary. The court set the sentences to run
consecutively, resulting in a total active sentence of sixty-eight years in prison. Lynch appeals.
II. ANALYSIS
On appeal, Lynch contends that the trial court erroneously admitted the statement, “Why
you telling them what we just did?” coupled with the substance of the preceding conversation
between Kenneth, Tyreke, and Christopher, under the adoptive admission exception to the
hearsay rule, reasoning that the evidence was insufficient to demonstrate that Lynch had
overheard enough of the conversation to understand what was being discussed. For the reasons
that follow, we disagree.
A.
“‘The admissibility of evidence is within the broad discretion of the trial court, and a
ruling will not be disturbed on appeal in the absence of an abuse of discretion.’” Gonzales, 45
Va. App. at 380, 611 S.E.2d at 618 (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371
S.E.2d 838, 842 (1988)). “However, ‘by definition, when the trial court makes an error of law,
an abuse of discretion occurs.’” Id. (quoting Bass v. Commonwealth, 31 Va. App. 373, 382, 523
S.E.2d 534, 539 (2000)).
Hearsay evidence is inadmissible unless it falls within one of the recognized exceptions
to the hearsay rule. Clay v. Commonwealth, 33 Va. App. 96, 104, 531 S.E.2d 623, 626-27
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(2000) (en banc); see also West v. Commonwealth, 12 Va. App. 906, 909, 407 S.E.2d 22, 23
(1991). And, if the admissibility of a hearsay statement is conditioned upon a finding of certain
predicate facts, the party seeking to admit the hearsay evidence must prove, by a preponderance
of the evidence, each of those qualifying factors. See Rabeiro v. Commonwealth, 10 Va. App.
61, 64-65, 389 S.E.2d 731, 733 (1990) (“On factual issues relating to the admissibility of
evidence, the burden of persuasion is proof by a preponderance of the evidence.”); see also Doe
v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984) (noting that the party seeking to have
a hearsay declaration admitted “must clearly show” that the evidence falls within an exception to
the hearsay rule); Neal v. Commonwealth, 15 Va. App. 416, 420-21, 425 S.E.2d 521, 524 (1992)
(“[T]he party seeking to rely upon an exception to the hearsay rule has the burden of establishing
admissibility.”).1 These “antecedent facts” must be “determined by the court, and not by the
jury.” Mullins v. Commonwealth, 113 Va. 787, 791, 75 S.E. 193, 195-96 (1912) (internal
quotations omitted); see also Rabeiro, 10 Va. App. at 64, 389 S.E.2d at 732 (“The factual
determinations which are necessary predicates to rulings on the admissibility of evidence and the
purposes for which it is admitted are for the trial judge and not the jury.”).
When deciding whether the proponent of the hearsay statement has sustained his burden
of proving the necessary predicate facts, “the trial court, acting as a fact finder, must evaluate the
credibility of the witnesses, resolve the conflicts in their testimony and weigh the evidence as a
whole.” Albert v. Commonwealth, 2 Va. App. 734, 738, 347 S.E.2d 534, 536 (1986). Thus, the
1
Lynch, however, argues that the “clearly show” language from Doe implies that the
proponent of a hearsay statement must prove, by clear and convincing evidence, each of the
elements needed for application of an exception to the hearsay rule. Neither this Court nor the
Virginia Supreme Court has ever applied a clear and convincing standard of proof where the
proponent of a statement seeks to admit that evidence under an exception to the hearsay rule.
Rather, we interpret the “clearly show” language as merely restating the general proposition that
the proponent of a hearsay statement has the burden of proving its admissibility, including
proving, by a preponderance of the evidence, each of the facts necessary to support application
of the appropriate hearsay exception.
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trial court’s determination that these factual prerequisites have been met “‘is to be given the
same weight by the appellate court as is accorded the finding of fact by a jury.’” Id. (quoting
Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296-97 (1975)); see also Rabeiro, 10
Va. App. at 64, 389 S.E.2d at 733.
Accordingly, when reviewing a trial court’s decision to admit a statement under an
exception to the hearsay rule, this Court must first decide whether the evidence supports the trial
court’s conclusion that the proponent of the statement established each of the factual
prerequisites for application of the designated hearsay exception. If those factual findings are
plainly wrong or without evidence to support them, we will reverse the trial court because it
abused its discretion, as a matter of law, in determining that the hearsay exception applied. See
Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 563, 463 S.E.2d 442, 444 (1995) (“A trial
court has no discretion to admit clearly inadmissible evidence because admissibility of evidence
depends not upon the discretion of the court but upon sound legal principles.” (internal
quotations omitted)). If the trial court’s factual findings are supported by the evidence, this
Court must then determine whether the trial court abused its discretion by admitting the
otherwise admissible hearsay statement. See, e.g., Clay, 33 Va. App. at 107, 531 S.E.2d at 628
(after determining that the challenged statement fell within the state of mind exception to the
hearsay rule, noting that “[w]e must now determine whether . . . the trial court abused its
discretion in judging” that “the prejudicial effect of such evidence outweighed its probative
value”).
Under the circumstances of this case, we hold that the trial court did not clearly err in
holding that the Commonwealth carried its burden of proving the required antecedent facts for
application of the adoptive admission exception to the hearsay rule. And, because Lynch has not
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advanced any other argument in support of his contention that the trial court erred, we hold that
the court did not abuse its discretion by admitting the statement into evidence.
B.
One of the established exceptions to the hearsay rule permits the introduction of an
out-of-court statement that qualifies as an “adoptive admission.” An adoptive admission may
occur either “expressly (e.g., by oral or written statements of the party) or impliedly (e.g., by
conduct of the party).” Charles E. Friend, The Law of Evidence in Virginia § 18-49(c) (6th ed.
2003); see also United States v. Robinson, 275 F.3d 371, 383 (4th Cir. 2001) (“A party may
manifest adoption of a statement in any number of ways, including [through] words, conduct, or
silence.”); 29A Am. Jur. 2d Evid. § 797 (2004) (“[A]doption or acquiescence may be manifested
in any appropriate manner,” including when the party “expressly agrees to or concurs in an oral
statement made by another,” “hears the statement and later on essentially repeats it,” “utters an
acceptance or builds upon the assertions of another,” “replies by way of rebuttal to some specific
points raised by another, but ignores further points which he or she has heard the other make,” or
“reads and signs a written statement prepared by another.”).
The Commonwealth contends that the adoptive admission in this case is analogous to an
adoptive admission by silence. In Virginia, it is well established that “an admission by silence is
. . . a form of adoptive admission.” Friend, supra, at § 18-49(e).2 However, the “very distinct
2
As noted by the Virginia Supreme Court,
when a statement tending to incriminate one accused of
committing a crime is made in his presence and hearing and such
statement is not denied, contradicted, or objected to by him, both
the statement and the fact of his failure to deny are admissible in a
criminal proceeding against him, as evidence of his acquiescence
in its truth.
James v. Commonwealth, 192 Va. 713, 718, 66 S.E.2d 513, 516 (1951); see also Tillman v.
Commonwealth, 185 Va. 46, 56, 37 S.E.2d 768, 773 (1946) (“It is well settled that statements
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requirements”3 needed to establish admissibility of an adoptive admission by silence are not
directly applicable in the context of other forms of adoptive admissions. See id. That is, the
specific antecedent factors that must be proven to admit an adoptive admission by silence stem
from the “uncertainty which attends interpreting a person’s silence as an implied admission of
the statement made.” 29A Am. Jur. 2d Evid. § 799 (2004). When an individual is not silent but,
instead, affirmatively responds to a statement, those same concerns are not implicated.
Thus, if the individual alleged to have adopted a statement manifests his assent to a
statement by some form of conduct other than silence, the inquiry changes slightly. Under those
circumstances, the trial court need only determine whether, in light of the resulting verbal or
non-verbal response, “‘there are sufficient foundational facts from which the jury could infer that
the defendant heard, understood, and acquiesced in the statement.’” Robinson, 275 F.3d at 383
(quoting United States v. Jinadu, 98 F.3d 239, 244 (6th Cir. 1996)).
made in the presence and hearing of another, to which he does not reply, are admissible against
him as tacit admissions of their truth or accuracy, when such statements are made under
circumstances naturally calling for reply if their truth is not intended to be admitted.”). “This
principle rests upon that universal rule of human conduct which prompts one to repel an
unfounded imputation or claim.” Tillman, 185 Va. at 56, 37 S.E.2d at 773; see also Sanders v.
Newsome, 179 Va. 582, 592, 19 S.E.2d 883, 887 (1942).
3
If a party seeks to prove an adoptive admission by silence, the proponent of the
statement must establish the following factual conditions: (1) the statement must have been
heard by the party alleged to have acquiesced in the statement, (2) the party must have
understood that “he was being accused of complicity in a crime,” (3) “the circumstances under
which the statement was made must have been such as would afford him an opportunity to deny
or object,” and (4) “the statement must have been such, and made under such circumstances, as
would naturally call for a reply.” Owens v. Commonwealth, 186 Va. 689, 699, 43 S.E.2d 895,
899 (1947) (internal quotations omitted); accord Dowden v. Commonwealth, 260 Va. 459, 469,
536 S.E.2d 437, 442 (2000); Baughan v. Commonwealth, 206 Va. 28, 32, 141 S.E.2d 750, 752
(1965); Strohecker v. Commonwealth, 23 Va. App. 242, 252, 475 S.E.2d 844, 849 (1996).
Overall, the “essential inquiry in each case is whether,” under the totality of the circumstances,
“a reasonable person would have denied” the statement. Knick v. Commonwealth, 15 Va. App.
103, 107, 421 S.E.2d 479, 481 (1992); see also Wienbender v. Commonwealth, 12 Va. App. 323,
325, 398 S.E.2d 106, 107 (1990).
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C.
On appeal, Lynch argues that the statement, “Why you telling them what we just did?,”
coupled with the other parties’ statements discussing the murder, does not fall within the
adoptive admission exception to the hearsay rule because there is no evidence that Lynch
overheard the entire conversation between Kenneth, Christopher, and Tyreke. At the outset,
however, we must clarify that this case does not involve an adoptive admission by silence. The
evidence does not show that, while Kenneth, Christopher, and Tyreke were discussing the
murder, Lynch approached the conversation and remained silent. Rather, he joined the
conversation and affirmatively stated, “Why you telling them what we just did?” Thus, this is
not a case where the individual alleged to have adopted a statement “failed to reply” to a direct or
indirect accusation of wrongdoing.4 Rather than requesting introduction of a statement and
Lynch’s resulting silence, the Commonwealth sought to introduce a statement and Lynch’s
resulting verbal response. As a result, the four factors set forth in Owens are not directly
applicable under the circumstances of this case.
We must determine, rather, whether the Commonwealth presented sufficient foundational
evidence from which the trial court could infer that Lynch heard, understood, and agreed with
the substance of the conversation between Kenneth, Christopher, and Tyreke. Under the
circumstances of this case, we hold that the trial court could reasonably have inferred that Lynch
heard enough of the conversation to know that the other men were discussing the murder,
understood that he had been implicated in that murder, and, by his verbal statement, manifested
his agreement with the fact that he had been involved in the murder.
4
“For the adoptive admission exception to apply, a direct accusation is not needed.”
Strohecker, 23 Va. App. at 254, 475 S.E.2d at 850.
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First, the Commonwealth presented sufficient evidence from which it could be inferred
that Lynch overheard at least a portion of the conversation between Kenneth, Christopher, and
Tyreke. Although Lynch was outside when the conversation began, Kenneth testified that, while
they were discussing the “skinny woman,” he heard Lynch coming up the stairs. Lynch then
entered the conversation and asked, “Why you telling them what we just did?” This
conversation occurred in Tyreke’s home, immediately after he and Lynch returned from the
crime scene. Considering the context, time, and location of the discussion, the trial court could
reasonably have inferred that Lynch heard enough of the conversation to understand that the
other men were talking about the murder in which he had just participated. See Wienbender v.
Commonwealth, 12 Va. App. 323, 326, 398 S.E.2d 106, 108 (1990) (affirming admission of
hearsay statement where “the trial judge could have inferred that the defendant heard the
statement”); Stumpf v. Commonwealth, 8 Va. App. 200, 206, 379 S.E.2d 480, 484 (1989) (“The
record shows that [the declarant’s] statements . . . were made with the knowledge and consent of
[the defendant], who, by reasonable inference, was with [the declarant] when she made them.”);
see also United States v. Tedder, 801 F.2d 1437, 1451 (4th Cir. 1986) (where jury heard
“conflicting testimony about the conditions under which [an accomplice] made his incriminating
statements,” including testimony that the defendant “was within earshot” but about “ten feet
away,” “the jury was entitled to conclude that [the defendant] heard and adopted [the
accomplice’s] account”); State v. Thompson, 420 S.E.2d 395, 402 (N.C. 1992) (rejecting
argument that the “person making the statement [must] be in the physical presence of the
defendant, concluding instead that “the proper focus is on the defendant’s ability to hear and
understand the statement being made”).
Second, the trial court could reasonably have inferred that Lynch understood not only the
nature of the conversation, but also the fact that he had been implicated in the shooting.
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Specifically, Lynch entered the conversation and immediately asked, “Why you telling them
what we just did?” Considering Lynch’s use of the word “we,” the trial court could reasonably
have concluded that Lynch understood not only that the murder was being discussed, but that he,
too, had been fingered as a participant in the crime.
Third, the trial court could reasonably have inferred that Lynch’s statement, “Why you
telling them what we just did?,” was sufficient to indicate his agreement that he had been
involved in the murder. Again, Lynch’s use of the word “we” is telling. Rather than stating,
“Why you telling them what you just did,” Lynch asked, “Why you telling them what we just
did?” Ordinarily, an individual accused of murder would take reasonable steps to deny his
participation in that murder. Here, however, Lynch did not merely fail to deny his participation
in the shooting—he, by his own words, affirmatively implicated himself. Thus, the trial court
could reasonably have concluded that Lynch’s statement was sufficient to indicate his agreement
that he had been involved in the murder. See, e.g., Robinson, 275 F.2d at 383 (affirming trial
court’s admission of a conversation between the defendants where the parties discussed a murder
they had just committed, noting that, “had either [party] disagreed with a statement by the other,
he would have made his disagreement known”); see also United States v. Handy, 668 F.2d 407,
408 (8th Cir. 1982) (holding that defendant’s interjection, “Yes, we did,” during co-conspirator’s
discussion of an attempted murder was an adoptive admission); cf. Clemmer v. Commonwealth,
208 Va. 661, 665, 159 S.E.2d 664, 667 (1968) (holding that, where an officer asked the
defendant “about his drinking,” and the defendant responded that it “wasn’t any of [the officer’s]
business what he had been drinking,” this statement was “not such that one can infer from it a
tacit admission by defendant that he had been drinking, or was under the influence of alcohol,”
reasoning that the defendant’s “answer that it was none of the trooper’s business what he had
been drinking can be interpreted as an insolent answer to an officer of the law, but it cannot be
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construed as a tacit admission that defendant had been drinking alcohol or was under the
influence of alcohol”).
Finally, we note that any residual doubt as to whether Lynch agreed that he had
participated in the murder went to the weight of the evidence, not its admissibility. See
Thompson, 420 S.E.2d at 403 (“A response which is not the equivalent of a denial may indicate
acquiescence and be considered by the jury for what it is worth.”); see also United States v.
Tocco, 135 F.3d 116, 128-29 (2d Cir. 1998) (holding that defendant’s nod when witness told him
that defendant’s accomplice was talking about their involvement in an arson constituted an
adoptive admission, reasoning that the statement was “exactly the type of statement that an
innocent person, under these circumstances, would normally deny,” but that the meaning of the
nod was “ultimately a question for the jury to assess”).
III. CONCLUSION
For these reasons, we hold that the trial court did not err in admitting Lynch’s statement
and the substance of the preceding conversation under the adoptive admission exception to the
hearsay rule. Accordingly, we affirm his convictions.
Affirmed.
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Benton, J., dissenting.
“As a general rule, hearsay evidence is incompetent and inadmissible.” Neal v.
Commonwealth, 15 Va. App. 416, 420, 425 S.E.2d 521, 524 (1992). Furthermore, a
codefendant’s out-of-court statement implicating a defendant in a crime is a category of hearsay
that is presumptively and inherently unreliable. Lilly v. Virginia, 527 U.S. 116, 131 (1999). In
view of these principles, “[a] party who relies upon an exception to an exclusionary rule of
evidence bears the burden of establishing admissibility.” Doe v. Thomas, 227 Va. 466, 472, 318
S.E.2d 382, 386 (1984).
At a pretrial hearing, the trial judge considered Kenneth Parker’s testimony as proffered.
Parker testified that Gregory Williams, Lester B. Lynch, and a “younger fellow” arrived at
Williams’s brother’s residence in the evening. Williams exited the car and rang the doorbell.
After Williams’s brother came downstairs and opened the door, Williams and his brother went
upstairs followed by Parker. Lynch was outside the building talking to the “younger fellow.”
Based on Parker’s proffered testimony, the trial judge ruled that statements Williams
made to his brother and Parker inside the residence the day the killing occurred were admissible.
In pertinent part, Parker’s testimony established the following:
A. When I followed [Williams] upstairs, I went to the den. He
went to his brother’s room.
Q. So you weren’t in the hallway then; is that correct?
A. Not at that time. I didn’t go into the hallway until [Williams’s]
brother . . . came out of the room. And when he came out of the
room, I went to the bathroom. When I went to the bathroom, I
overheard [Williams] telling [his brother] what had happened.
Q. So this conversation took place in the bedroom?
A. No, it took place in the hallway. His brother came into the
hallway because his girlfriend was in the room. She was going
into labor.
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Q. At this time [Williams] tells his brother what has happened; is
that correct?
A. The little young boy downstairs is trigger happy.
Q. My question is he told his brother what had happened?
A. Yeah.
Q. At that point you don’t see Mr. Lynch, do you?
A. No, not at that time. He didn’t come up the stairs right then.
He didn’t come up the stairs until . . . .
He didn’t come up the stairs -- like when I got in the conversation
like after I overheard [Williams], what he was telling his brother,
that’s when I got in the conversation, and that’s when [Lynch]
came up the stairs.
Q. In fact, you’ve testified before you don’t know what he heard,
do you?
A. What who heard?
Q. [Lynch].
A. I can’t hear for him. You know what I am saying? Only thing
I can do is tell you what [Lynch] said. As far as what he heard,
them his ears. I can’t tell you exactly what he heard. Only thing I
know is [Lynch] asked [Williams] why was he telling [Williams’s
brother] what they had just done.
* * * * * * *
A. Yeah. I mean, I didn’t put the exact point of time, whether he
came when [Williams] was talking or whether he came when I was
talking. I didn’t say that in my testimony at [Williams’s] trial. I’m
telling you [Lynch] came upstairs when we was talking and he
asked [Williams] why was he telling us that. At what point what
he heard or whether I was talking or whether [Williams] was
talking, I don’t know. You know what I am saying? You’re
asking me to tell you something that I don’t know.
Q. Did he ever say what that was?
A. What what was?
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Q. You said, why are you telling him what we just done? Did he
ever say what that was that they had just done?
A. No, but [Williams] responded back to him and said, this my
brother, and [Parker] is cool. He ain’t going to say nothing.
Eventually he was talking about what he was telling us about.
Q. So you assume that, right?
A. Yeah. Well, I am assuming.
The trial judge ruled “that the matter will be an adoptive admission.” Over Lynch’s
hearsay objection, Parker later testified at trial as follows:
Q. What starts to happen when you get upstairs?
A. When I got in the den area, [Williams] had went to the
bathroom. He came out and knocked on his brother’s door, and he
starts talking to his brother. He was telling him about what they
had just done. So I was in the den area. I could hear basically
what they were saying.
Q. Did you have any problem hearing anything that was being
said?
A. No. And I heard [Williams] say that they had just shot a
woman. So when I heard the part that they had just shot a woman,
that’s what really, really, you know, gripped my attention.
So I came out of the den, and I was like, man, what you done
got yourself into? You-all done shot a woman? And [Williams]
was like, yeah. So I was like, where was you-all at? He was like,
we went to [Ronald Scott’s] house. . . .
He said we went to go get [Scott]. And I was like, why would
you-all go in and try to do something and rob him or whatever
when he cool with everybody? You know, he hang out with us.
And [Williams] was like, man, I’m going to get put out. My
light’s due, my rent due, my girl getting ready to leave and I don’t
care who I get.
So I said, well, who was the lady that you-all shot? So he was
like, it was a skinny lady. I said, that man’s mom is, you know,
skinny. And he was like, no, it won’t his mom. It probably was
his sister. I said, what difference does it make if it was his sister or
his mom, you know? And at that time [Lynch] was coming up the
stairs.
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On cross-examination, Parker repeats that Lynch is outside of the residence when Parker,
Williams, and Williams’s brother entered it.
Q. And you get upstairs --
A. Right.
Q. -- and there is a conversation that goes on. [Williams] goes
into the bathroom. You go into the den. Then [Williams] and his
brother engage in a conversation.
A. Correct.
Q. At that time [Williams] tells him that they’ve just killed a
woman?
A. Yeah. He said -- these words is his exact words. He said,
“That young kid downstairs leaning on the car is trigger happy.”
And [Williams’s] brother was like, what you talking about?” And
[Williams] like, “Man, he just shot a lady.”
Q. And at that point, the person that you’re describing as Lester
Lynch is not in the house, is he?
A. No. He didn’t come up until --
* * * * * * *
Q. And then at some point while you’re talking to [Williams], the
person comes upstairs and says, “Why are you telling him what we
just done?”
A. Not the person. Him. The gentleman right there, Mr. Lester
Lynch. He came up the stairs and asked him, he said, “Why are
you telling them what we just done?”
Q. Did he ever say why you telling them why we went to kill
someone?
A. No. He didn’t say nothing about that. He asked him --
Q. Did he ever --
A. [Williams] had already told us that someone had got killed.
And [Lynch] walked up and asked him why was he telling us what
they had just done.
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Q. But you said [Williams] told his brother we had been on a
sting, right? Isn’t that what you said?
A. Yes.
Q. And you said --
A. And [Williams] told them what happened.
Q. Didn’t you just say a sting could be anything?
A. Like a sting is slang for robbing or you can go steal something
to get away with it. I got away with that sting. You could rob
somebody. You could plan to rob somebody and say I’m going on
a sting tonight, you know. You don’t know. It could be stealing
radios out cars, anything. A sting is going to do something wrong,
period.
Q. So he never said it was killing anyone?
A. [Williams] said they had shot someone. He said they just
shot --
Q. But that’s what you’re saying that [Williams] said?
A. Yeah. [Williams] said they had just killed somebody.
The Commonwealth, which was the party “‘seeking to have hearsay declarations of a
witness admitted as an exception to the general rule[,] must clearly show that [the hearsay
declarations] are within the exception.’” Id. (citation omitted). I would hold that the
Commonwealth failed to meet its burden and that the trial judge erroneously admitted Parker’s
recitation of Williams’s statements as “an adoptive admission” by Lynch. When a statement is
offered as an adoptive admission, a primary inquiry the trial judge must make is “whether there
are sufficient foundational facts from which the jury could infer that the defendant heard,
understood, and acquiesced in the statement.” United States v. Jinadu, 98 F.3d 239, 244 (6th Cir.
1996). To satisfy this exception to the hearsay rule, the evidence must prove the “statement
tending to incriminate one accused of committing a crime is made in his presence and hearing.”
James v. Commonwealth, 192 Va. 713, 718, 66 S.E.2d 513, 516 (1951).
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Simply put, the Commonwealth’s evidence did not prove the predicate facts necessary to
invoke the hearsay exception. See Sapp v. Commonwealth, 263 Va. 415, 424, 559 S.E.2d 645,
650 (2002) (holding that the proponent of evidence, which is claimed to fall within an exception
to the hearsay rule, has the burden “to lay a proper predicate for its introduction”); United States
v. Robinson, 275 F.3d 371, 383 (4th Cir. 2001) (noting that under the federal rules a primary
determination is “whether there are sufficient foundational facts from which the jury could infer
that the defendant heard, understood, and acquiesced in the statement”). Both case law and
commonsense dictate that for a defendant to have adopted an admission as his own “foundational
facts” must first establish that the defendant heard and understood the statement.
No evidence proved Williams made his statement in Lynch’s “presence and hearing.”
James, 192 Va. at 718, 66 S.E.2d at 516. Indeed, the evidence established just the opposite: that
Lynch was not in the presence of the three men when Williams spoke about the killing. Parker
testified he was in the bathroom when Williams first mentioned the killing to his brother. By
Parker’s own testimony, he joined the conversation only after he emerged from the bathroom in
the den, and he was aware Lynch had not then entered the residence: “[h]e [Lynch] didn’t come
up the stairs.” Obviously, Lynch could not have adopted the statement as his own if he never
heard it. It is simply speculation to say at what point, if at all, Lynch adopted any of Williams’s
comments. Yet, the jury was allowed to attribute to Lynch all of Williams’s statements. In view
of the evidence, it is just as likely that Lynch was motivated to speak merely because he detected
a heated argument as he ascended the stairs. For these reasons, I would hold that the evidence
failed to prove that Lynch heard Williams’s conversation and that, therefore, the trial judge erred
in admitting into evidence Williams’s statements about the killing.
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I would further hold that the admission of the hearsay evidence was not harmless. This
inadmissible evidence was so prejudicial to Lynch that we cannot reasonably conclude that it did
not affect the verdict.
“[I]f 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 v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 732 (2001) (quoting Kotteakos v.
United States, 328 U.S. 750, 764-65 (1946)). Applying this test, the United States Supreme
Court has held that “the principle of Kotteakos [means] that when an error’s natural effect is to
prejudice substantial rights and the court is in grave doubt about the harmlessness of that error,
the error must be treated as if it had a ‘substantial and injurious effect’ on the verdict.” O’Neal
v. McAninch, 513 U.S. 432, 444 (1995). “The inquiry cannot be merely whether there was
enough to support the result, apart from the phase affected by the error. It is rather, even so,
whether the error itself had substantial influence. If so, or if one is left in grave doubt, the
conviction cannot stand.” Kotteakos, 328 U.S. at 765. Consistent with these principles, the
Supreme Court of Virginia has held that even if “the other evidence amply supports the . . .
verdicts, [error is not harmless when] the disputed [evidence] may well have affected the . . .
decision.” Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978). In short,
our “harmless error analysis . . . [is not] simply a sufficiency of the evidence analysis.” Hooker
v. Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345 (1992).
The inadmissible evidence had such a substantial influence that we cannot reasonably
conclude that it did not affect the verdict. The jury was asked to make a critical credibility
determination whether to believe Lynch’s alibi witnesses, who placed him somewhere else
during the killing, or to believe Scott, Reid, and Parker, whose testimony placed Lynch at the
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house where the woman was killed. The inadmissible hearsay evidence served to impermissibly
buttress the credibility of the Commonwealth’s witnesses because the evidence identifying
Lynch as being present at the killings was problematic and was marred by a number of
inconsistencies.
For example, Reid, who was present in the house when the killing occurred, testified that
the man who entered the room with Williams wore a mask. After the killing, she could not
identify Lynch from photographs. She only later identified him when she saw him in court as the
defendant. Scott, on the other hand, was in the same room as Reid but testified that the man did
not wear a mask. He did not initially identify the man as Lynch but did so at trial.
Significantly, the record indicates that shortly after the killing, Scott identified Parker, not
Lynch as one of the persons who entered the residence when his mother was killed. He admitted
at trial that he first told police that Williams, Williams’s brother, and Parker may have been the
ones who robbed him. This identification was significant because Scott and Parker knew each
other quite well. Scott also knew Williams. The jury may not have believed this curious change
in Scott’s memory and identification had they not learned about Lynch’s “adopted” confession
that Parker related at trial.
Scott also testified that Parker twice had visited him at his mother’s house earlier that
day. The first time, Parker purchased heroin. He later returned to the house and demanded a
return of his money, accusing Scott of selling bad heroin. Scott testified that during both
occasions Williams, whom he knew, and Lynch, whom he had not previously met, were in a car
waiting for Parker. Conversely, in his testimony, Parker never acknowledged his earlier
presence at Scott’s mother’s house or that he knew Scott had a large amount of money and
heroin in the house.
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Significantly too, Parker’s testimony conflicted with Scott’s testimony about Lynch’s
whereabouts during the day. Whereas Scott testified that Lynch was waiting for Parker in the car
when Parker purchased heroin, Parker testified that he first saw Lynch with Williams in the early
evening and that he accompanied them in the car for just one block because Lynch and Williams
had someplace else to go. Parker testified that he next saw Williams and Lynch when they
returned to Williams’s brother’s residence with a “younger fellow” whom he did not identify. At
that time, Williams went upstairs and made his statement about the shooting.
The Commonwealth’s use of Parker’s testimony to tie Lynch to Williams’s statement
effectively shifted the focus from Scott’s earlier statement to the police that Parker, whom he
knew, was indeed the unmasked man in the house during the shooting. When Scott’s trial
testimony identified Lynch, Parker buttressed Scott’s identification by relating Lynch’s
“adopted” confession. With this change, the jury likely saw Parker as an observer, not a
participant. It is, therefore, reasonable to assume that in weighing the evidence the jury gave
substantial weight to Parker’s testimony relating the confession of Williams and implicating
Lynch as being present at the killing. A confession of a perpetrator implicating the presence of a
codefendant at the scene of a crime is inherently prejudicial.
Clearly, where the principal direct evidence against the accused
is the testimony of an accomplice, the credibility of that witness
will be a significant factor in the jury’s determination of the
accused’s level of culpability. [The Supreme Court has]
consistently held that this credibility determination rests with the
jury and is not subject to challenge on appeal merely because the
testimony is self-serving, results from a favorable plea
arrangement, or because the witness is himself a felon. However,
here the issue is not the credibility of the witness, but rather the
potential for harm caused by the erroneous admission of evidence
which tends to support the jury’s credibility determination. In that
context we must presume that such evidence had the potential to
influence the jury into accepting the properly admitted evidence as
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more credible and, thus, to taint the jury’s determination of the
facts.
Lilly v. Commonwealth, 258 Va. 548, 553, 523 S.E.2d 208, 210 (1999).
I would hold that it does not plainly appear that the error did not substantially and
injuriously affect the verdict. The evidence, if successful in achieving its purpose, clearly would
have affected the verdict. See Norfolk Ry. & Light Co. v. Corletto, 100 Va. 355, 360, 41 S.E.
740, 742 (1902) (holding that “[i]t is . . . well settled that if a . . . mistake of the court appear[s] in
the record it must be presumed that it affected the verdict of the jury, and is therefore ground for
which the judgment must be reversed, unless it plainly appears from the whole record that the
error did not affect, and could not have affected, their verdict”).
For these reasons, I would reverse the convictions and remand for a new trial.
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