COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Overton
Argued at Alexandria, Virginia
ROLAND ANTHONY EVANS
OPINION BY
v. Record No. 2893-01-4 JUDGE JAMES W. BENTON, JR.
NOVEMBER 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Walter J. Ford, Judge Designate
James C. Clark (Land, Clark, Carroll,
Mendelson & Blair, P.C., on brief), for
appellant.
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Roland Evans contends the trial judge erred in sustaining
the Commonwealth's objection to a witness' testimony and by
denying Evans's motion for an evidentiary hearing to investigate
juror misconduct. Because the record does not contain a proffer
of the witness' expected testimony, we cannot determine whether
the judge erred in sustaining the objection to the testimony. In
addition, we hold the trial judge made a premature credibility
finding on the issue of juror misconduct. We, therefore, reverse
the trial judge's decision on the motion and remand for an
evidentiary hearing.
I.
The evidence at trial proved that in the Fall of 2000, Evans
met a woman, named Williams, at the barber shop where he worked
and where she received hair cuts. After Evans and Williams
developed a friendship, they had meals together, watched movies
and television together, and smoked marijuana together. On three
occasions, Evans spent the night on a sofa in Williams's
apartment. Williams, however, denies ever having consensual sex
or using cocaine with Evans.
Williams testified that on December 27, 2000, Evans came to
her home unannounced after 10:00 p.m. Although Williams had
already retired for the evening and initially ignored the
knocking at her door, she eventually admitted Evans to her
apartment. While they sat on the sofa and talked, Williams
noticed that Evans had been drinking alcohol and told him to
leave. When Evans was reluctant, Williams opened the door and
insisted that he leave. Evans then grabbed her by the throat,
closed the door, wrestled her, and hit her. Williams testified
that she screamed and knocked over things in the room, hoping
someone would hear her. The person who lives in the apartment
below Williams testified that she heard noises indicating a fight
was occurring in Williams's apartment between 11:00 p.m. and 3:00
a.m.
When Williams realized she was getting nowhere by
struggling, she begged Evans to stop the assault and said, "you
can do anything you want to do to me, just don't hit me [any]
more." Williams testified that Evans raped her on the sofa and
then forced her into the bedroom, where he sodomized her and
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raped her again. She testified that the assault stopped only
when Evans became sick. After Evans vomited and fell asleep,
Williams left her apartment wearing only a shirt and asked the
apartment's attendant to call the police. The police arrived at
4:30 a.m. and found Evans sleeping on Williams's bed and arrested
him.
Evans had a different account of the events. He testified
that he and Williams had consensual intercourse that night. He
said fighting occurred only after Williams refused to pay him for
cocaine he earlier had obtained for her. Evans testified that he
became angry and threatened to take Williams's car. When
Williams fought him for the car keys, she suffered injuries and
items in her apartment were broken during this struggle.
At the conclusion of the evidence, the jury convicted Evans
for rape, forcible sodomy, abduction with intent to defile, and
assault and battery. After the trial judge dismissed the jurors
at the end of the trial, Evans's counsel asked for a bench
conference. Following the conference, the trial judge questioned
a juror and asked if he "overheard or discussed anything with
anybody during the trial." The juror said he had "[n]ever
discussed the case with anyone." He recalled that a man said he
was there for a trial and that he asked the man which trial. The
juror said he immediately walked away when the man said the Evans
trial.
Weeks later, but before the sentencing hearing, Evans's
counsel filed a motion for a new trial, alleging juror
misconduct. Attached to the motion is a document, which is
styled "affidavit" and which recites, in pertinent part, as
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follows:
1. On the second day of the trial, June 26,
2001, I was in front of the Courthouse
during the lunch recess. I was approached
by a well-dressed, bald, African-American
man who began to speak to me.
2. I do not remember the exact words he
said, but the substance of his statements
were as follows:
A. He was there to watch the trial of his
nephew.
B. He hoped they gave his nephew forty years.
C. His nephew "thinks he's slick."
D. He was only coming to the trial to support
his sister-in-law.
E. His nephew was always in trouble.
F. His nephew had been in this kind of
trouble before.
3. I asked the man which trial he was
talking about and he said "Roland Evans."
4. When I realized he was talking about
Roland Evans, I ended the conversation.
5. I did not realize he was speaking about
Roland Evans until he specifically mentioned
that he was speaking about Roland Evans.
6. I did not ask him any questions or
continue speaking with him once I realized
he had been speaking about Roland Evans.
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The juror's signature is below the words, "I swear or affirm that
the above statements are true to the best of my recollection."
An investigator for the Public Defender's Office, C.E. Nelson,
signed the document next to the words "witnessed by."
The prosecutor filed a response to the motion and attached
to it a document from the same juror. This document is also
styled, "affidavit," and recites, in pertinent part, the
following:
1. After the trial, on two occasions, a man
named Clarence Nelson came to see me. From
what he said to me, I assumed he was with
the Commonwealth Attorney's office.
2. I told him about the man who talked to me
outside of the Courthouse.
3. That man told me that someone related to
him was on trial, but I don't remember the
exact relation. I seem to recall that it
was his nephew or cousin, or a similar
relation.
4. That man told me that he was there to
support his wife.
5. When the man told me that he was there
about the Evans case, I walked away.
6. That man did not say anything about the
relative being in trouble before. He also
did not say anything about him being in that
kind of trouble before.
7. I did not notice those statements on the
paper Clarence Nelson had, or I would not
have signed it. I did not read his paper
carefully. I did not tell him what to put
in that paper, he had it written before he
came to see me.
8. I did not receive any information that
could have or that did affect my opinion
about the case.
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The juror's signature follows the words, "I swear the above
statements are true." A detective signed next to the words,
"witnessed by."
The trial judge denied Evans's request for an evidentiary
hearing and heard arguments on the motion for a new trial.
Referring to the juror's oral statement at the conclusion of
trial and the juror's statement attached to the Commonwealth's
response, the trial judge said the juror's "first statement and
his last statement were correct." The trial judge then said he
"would accept those and find as a fact that there was no other
conversation between [the juror and Evans's uncle]." Referring
to the juror's statement which accompanied Evans's motion, the
trial judge said even if "these facts are correct," he would find
them insufficient to grant the motion for a new trial. The trial
judge also accepted as a proffer of evidence a sworn, three-page
affidavit from Nelson, which detailed the events surrounding the
securing of the juror's statement that accompanied Evans's motion
for a new trial. That affidavit contradicted in significant part
two of the juror's other statements. The trial judge denied
Evans's motion for a new trial.
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II.
Evans contends the trial judge erred in sustaining the
Commonwealth's objection to Jill Brown's testimony at trial. The
Commonwealth contends that Evans cannot challenge the trial
judge's ruling because his counsel failed to make a proper
proffer of the testimony excluded. We agree that the necessary
proffer was not made.
Evans testified at trial that, a day and a half before the
struggle in Williams's apartment, he and Brown were on a highway
near Williams's apartment. As he approached an exit near the
apartment, he asked for Brown's cellular phone to place a call
because he had to "stop and get some money from somebody." He
did not testify that he identified that person to Brown. Later,
on direct examination, Brown testified that Evans had made a
statement to her in the car as they neared that highway exit.
When Evans's counsel asked Brown what Evans said, the prosecutor
objected on the ground that Evans's statement was an inadmissible
prior consistent statement. Evans's counsel responded that
Brown's recitation of Evans's statement was admissible under the
state of mind exception. The trial judge sustained the
prosecutor's objection.
"[W]hen testimony is rejected before it is delivered, an
appellate court has no basis for adjudication unless the record
reflects a proper proffer." Whittaker v. Commonwealth, 217 Va.
966, 968, 234 S.E.2d 79, 81 (1977). A proper proffer may consist
of "a unilateral avowal of counsel, if unchallenged, or a mutual
stipulation of the testimony expected." Id. at 969, 234 S.E.2d
at 81. The purpose for the proffer "is to assure that the record
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will be complete." Lowery v. Commonwealth, 9 Va. App. 304, 308,
387 S.E.2d 508, 510 (1990). In the absence of an acquiescence or
stipulation, we have held, in circumstances such as in this case,
that we will not consider the error assigned to the rejection of
the testimony unless it has been given in the absence of the jury
and made a part of the record. Whittaker, 217 Va. at 969, 234
S.E.2d at 81.
Evans argues that we can expect Brown's testimony to mirror
Evans's testimony. That, however, is a matter we cannot assume
and is precisely why a proffer is required. Clearly, Evans's
counsel's statement to the trial judge that "[Brown's testimony]
goes to the state of mind" is not sufficient to proffer the
substance of Brown's testimony; that statement was given in
response to the adequacy of the Commonwealth's objection and was
not an avowal of the substance of Brown's testimony. We hold,
therefore, the record is insufficient to determine whether the
trial judge erred in sustaining the prosecutor's objection.
III.
The rule is now well established that "private
communications, possibly prejudicial, between jurors and third
parties, are forbidden and invalidate the verdict unless their
harmlessness is made to appear." Dozier v. Morrisette, 198 Va.
37, 40, 92 S.E.2d 366, 368 (1956). "In considering a motion to
set aside when juror misconduct is alleged, the trial court has
the affirmative duty 'to investigate the charges and to ascertain
whether or not, as a matter of fact, the jury was guilty of such
misconduct.'" Commercial Union Ins. Co. v. Moorefield, 231 Va.
260, 265, 343 S.E.2d 329, 332 (1986) (quoting Kearns v. Hall, 197
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Va. 736, 743, 91 S.E.2d 648, 653 (1956)).
Although the Supreme Court has held that "hearsay affidavits
are not admissible in support of a motion for a new trial,"
Moorefield, 231 Va. at 265, 343 S.E.2d at 333, the Court also has
noted that, "[n]evertheless, such an affidavit may be sufficient
to require the trial court to investigate the matters recited in
the document." See also Evans-Smith v. Commonwealth, 5 Va. App.
188, 207, 361 S.E.2d 436, 447 (1987). In conducting such an
investigation, the trial judge may summon jurors and persons
knowledgeable of the events to be "sworn in open court and duly
examined by the court and counsel as to what had transpired."
Dozier, 198 Va. at 40, 92 S.E.2d at 368.
In deciding whether to order a new trial, the judge must be
mindful of the following:
A juror may not properly receive any
information about a case he is hearing
except in open court and in the manner
provided by law. The reception of any
evidence by the jury, especially in a
criminal case, in addition to that produced
at trial is ground for setting aside the
verdict whenever there is sufficient ground
to believe that . . . an accused in a
criminal case, has been prejudiced by
receipt of the information. And the test in
a criminal case "is not whether the jurors
were actually prejudiced by the extraneous
matter, but whether they might have been so
prejudiced. If they might have been
prejudiced, then the purity of the verdict
is open to serious doubt and the verdict
should be set aside and a new trial
awarded."
Brittle v. Commonwealth, 222 Va. 518, 522, 281 S.E.2d 889, 890
(1981) (citations omitted). Although "a motion for a new trial
on the ground of juror misconduct is addressed to the sound
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discretion of the trial judge," Moorefield, 231 Va. at 265, 343
S.E.2d at 332, the Supreme Court long ago held that this
principle must be applied "with the added caution that only
slight evidence of influence or prejudice as a result of such
misconduct of a juror should be required to warrant the granting
of a new trial." Hickerson v. Burner, 186 Va. 66, 72, 41 S.E.2d
451, 454 (1947). Against the background of these principles, we
must determine whether, as Evans contends, the trial judge erred
in denying his motion for an evidentiary hearing to enable him to
prove juror misconduct that would merit a new trial.
In denying Evans's motion, the trial judge relied upon three
pieces of evidence: the juror's unsworn oral statement at the
end of the trial concerning the event, the juror's written
statement to Evans's investigator that suggests the occurrence of
improper communication, and the juror's further written statement
to the detective that contradicts in part his previous written
statement. We note that neither of the two written statements
from the juror was an "affidavit," as that term is commonly used.
An affidavit is a declaration in writing made by a person under
oath and administered before a person authorized by law. Farm
Bureau Mut. Ins. Co. v. Hammer, 83 F. Supp. 383, 385 (W.D. Va.),
rev'd on other grounds sub nom. Farm Bureau Mut. Auto. Ins. Co.
v. Hammer, 177 F.2d 793 (4th Cir. 1949). See also Huff v.
Commonwealth, 213 Va. 710, 711-12, 194 S.E.2d 690, 692 (1973);
Hawkins v. Gibson, 28 Va. (1 Leigh) 476, 480 (1829); Code § 49-4
and § 49-5; Black's Law Dictionary 58 (7th ed. 1999).
Furthermore, the record indicates that Nelson's
three-page affidavit was proffered as an exhibit, was sworn, and
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contains a detailed narrative of his meeting with the juror,
which contradicts parts of the statement the juror gave the
detective. After hearing oral argument by counsel, the trial
judge ruled that "the statements submitted by [Evans's counsel]
were incorrect." The trial judge also ruled, however, that even
if Evans's allegation of misconduct was correct, he would still
find the conduct insufficient as to require a new trial.
Initially, we hold that the case decisions are contrary to
the trial judge's alternative ruling that, even if the events
occurred as Evans alleged, those facts provide an insufficient
basis for a new trial. A juror may not properly receive any
information about a case he is hearing except in open court and
in the manner provided by law. Brittle, 222 Va. at 522, 281
S.E.2d at 890. When a juror, "especially in a criminal case,"
receives extraneous evidence, that circumstance "is ground for
setting aside the verdict whenever there is sufficient ground to
believe that . . . an accused in a criminal case has been
prejudiced by receipt of the information." Id.
Both of the juror's written statements revealed more facts
than disclosed by the juror at the close of trial. One of the
juror's statements indicates that Evans's uncle revealed to him
inappropriate information about Evans. Specifically, that
statement indicates the uncle said that Evans thinks he's slick,
that Evans was always in trouble, that Evans has been in this
kind of trouble before, and that he hoped the jury gave Evans
forty years. If the juror's statement is correct, then the juror
received information about matters not evidence in the trial and
not properly introduced in an open court. This information is
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highly prejudicial to Evans because it suggests that Evans is
someone capable of committing the crimes charged, that he has the
propensity to commit these types of crimes, and that Evans's own
uncle thought he was guilty. At the very least, a verdict under
these circumstances is open to doubts. See Thompson v.
Commonwealth, 193 Va. 704, 715, 70 S.E.2d 284, 290 (1952).
We further hold that the trial judge failed to satisfy his
affirmative duty to adequately investigate the juror misconduct
allegation when he denied Evans's motion for a new trial without
first conducting an evidentiary hearing. When the trial judge
questioned the juror at the end of the trial, he asked the juror
whether the juror "overheard anything or discussed anything with
anybody." The juror's response was a brief denial of any contact
of substance with the man. When the juror's written statements
were later presented to the trial judge, the nature of the
contact, however, was disclosed to be different. Because the two
written statements conflict with each other and also with the
juror's oral statement, the trial judge was no longer
investigating a naked allegation of juror misconduct. He had a
basis to believe several conflicting sets of facts eminated from
this juror, one of which supported the misconduct allegation. In
addition, the trial judge had a proffer in the form of an
affidavit from an investigator attesting to the circumstances
surrounding the statement the juror gave him and contradicting,
in part, one of the juror's statements.
We do not know from competent evidence in the record what
actually transpired. But the trial judge should not have
dismissed Evans's motion without first conducting an adequate
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investigation upon evidence properly presented at a hearing. The
juror's statements and Nelson's affidavit were sufficient to
warrant an evidentiary hearing. Therefore, we reverse and remand
for an evidentiary hearing and for a determination on proper
evidence whether sufficient misconduct occurred to warrant the
setting aside of the jury verdict "and for such proceedings
thereafter as may be necessary and proper." Kearns, 197 Va. at
745, 91 S.E.2d at 654.
Reversed and remanded.
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