Cairns v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia

ROBERT BRUCE CAIRNS
OPINION BY
v. Record No. 2343-99-2 JUDGE ROSEMARIE ANNUNZIATA
MARCH 6, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge

Craig S. Cooley for appellant.

Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

The appellant, Robert Bruce Cairns, was convicted following

a bench trial in the Circuit Court of Chesterfield County of

four counts of forcible sodomy, one count of rape, and one count

of producing sexually explicit materials in violation of Code

§ 18.2-374.1. Cairns was sentenced to a total of 155 years

imprisonment, with ninety-five years suspended. On appeal,

Cairns alleges the trial court erred in admitting his

codefendant's statement against him in their joint trial

because: (1) the admission of the statement violated the

∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
marital privilege under Code § 19.2-271.2; (2) the statement

constituted inadmissible hearsay; and (3) the admission of the

statement violated his Sixth Amendment rights. Because we find

the admission of the statement violated Cairns' rights under the

Sixth Amendment's Confrontation Clause, and that this error was

not harmless, we reverse the convictions and remand for a new

trial.

I.

BACKGROUND

On appeal, we view the evidence in the light most favorable

to the Commonwealth, the party prevailing below. Winckler v.

Commonwealth, 32 Va. App. 836, 844, 531 S.E.2d 45, 49 (2000).

In 1998, WW, age fourteen, and NC, age eleven, both female, were

living with their parents, Cairns and his wife and codefendant,

Alice Cairns. 1 WW testified about a variety of episodes of

sexual activity to which her parents subjected her. WW reported

that the first incident occurred on February 16, 1998, when

"[she] had to give [her] mom and dad both oral sex, and they

gave [her] oral sex." 2 She also testified that her father "got

on top" of her and "tried to have sex" with her, but she told

him to stop "because it hurt."

1
WW was Cairns' stepdaughter.
2
This evidence supports Count #1, which charged Cairns with
committing forcible sodomy with WW sometime between February 1,
1998 and February 28, 1998, in violation of Code § 18.2-67.1.

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 Near the end of August, WW and NC "had to play a card game"

with their parents. The children had been "grounded," and

Cairns agreed they could reduce the amount of time they were

grounded if they played "truth or dare," or cards "or something

like that." In response, the girls agreed to make a movie, play

two card games, and play two games of "truth or dare" in order

to reduce their punishment.

That evening, WW, NC, Cairns, and Cairns' wife, Alice, made

a movie. 3 The two girls were in their parents' bedroom. Cairns

and the two girls were on the bed, and Mrs. Cairns operated the

video camera. At some point, the two children were naked. WW

had "oral sex" with Cairns, who then had "oral sex" with her. 4

NC also had "oral sex" with Cairns. 5 NC explained, "we had to

suck [Cairns'] dick and do stuff to each other and my mom." At

one point, when she was not operating the camera, Mrs. Cairns

put her tongue inside NC's vagina. At another time, Cairns got

on top of WW and asked her to allow him to engage in sexual

intercourse with her, but she refused. He asked her to do it

3
The production of this sexually explicit video was the
basis of Count #6, which alleged that Cairns violated Code
§ 18.2-374.1 on or about September 1, 1998.
4
Count #2 charged Cairns with committing forcible sodomy
with WW on or about September 1, 1998, in violation of Code
§ 18.2-67.1.
5
In Count #5, Cairns was charged with violating Code
§ 18.2-67.1 by having forcible sodomy with NC on or about
September 1, 1998.

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for the sake of the camera, but she continued to refuse. He

said, "fine," got off her and had NC give him "oral sex" a

second time. WW gave him "oral sex" again and NC complained

that she was getting tired. As a result, she traded places with

her mother and operated the camera. Mrs. Cairns then had "oral

sex" with Cairns. The videotaping lasted about an hour. At a

later time, Cairns played the tape in front of his two

daughters.

A second movie was made, which WW did not recall. NC,

however, described the taping as very similar in nature to the

first tape. She explained that Cairns "made us suck his penis

and lick my mom and each other and touch each other's boobs." 6

Mrs. Cairns ultimately assisted Cairns in ejaculating at the end

of the taping session.

In early September, WW played "strip poker" with her mother

and father. When WW ran out of clothing to remove, she was

issued some imaginary clothes. When she ran out of those, she

was left with "doing favors." Cairns told her to "get on [her]

back," and he "had sex with [her]," putting his penis inside her

6
The timing of the second videotaping is not apparent from
the record; however, Count #4 charged Cairns with committing
forcible sodomy with NC on or about May 1, 1998 through August
31, 1998, in violation of Code § 18.2-67.1.

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vagina. 7 Cairns then "had sex" with his wife on the other side

of the living room.

WW did not immediately report the incidents. She feared

she and her siblings 8 would be removed from the home and placed

in a foster home. She also explained that Cairns would threaten

to "ground" her if she refused to participate in the sexual

conduct. NC did not report the events because she feared

Cairns' "bad temper" and she feared being grounded. She

testified that she was forced to participate in the reported

activities "[m]ost of the time."

Both Cairns and his wife were interviewed by police, at the

police station, prior to their arrests. In his statement,

Cairns denied participating in any sexual conduct with the

girls. Although Mrs. Cairns initially denied having any

knowledge of the alleged activities, after the interviewing

officer reminded her that she had a criminal record and told

her, "the best thing you can do is be honest with us to help

yourself out," she confirmed some of her daughters' allegations.

Mrs. Cairns confirmed that her husband had sex with WW and that

NC had performed oral sex on Cairns but did not specify the

dates on which the conduct occurred. Mrs. Cairns stated that

7
In Count #3, Cairns was charged with raping WW on or about
September 5, 1998 through September 6, 1998, in violation of
Code § 18.2-61.
8
Cairns and his wife also have two young sons who were not
involved in the alleged conduct.

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she had videotaped her husband on the bed "touching" the girls

but denied that he had engaged in any sexual conduct with the

girls during the filming, contrary to the testimony of WW and

NC. She also denied having participated in any of the

activities during the videotaping. She denied knowing where the

videotapes were located, stating, "[Cairns] always did somethin'

with 'em." Mrs. Cairns stated she disapproved of what her

husband was doing with the daughters. When asked why she did

not stop him, she replied, "there ain't a lot I can do about it,

simply because he's quite a bit stronger than I am. He can

overpower me . . . ." She denied performing oral sex on either

of the girls but admitted she had kissed the "top part" of WW's

vagina.

Cairns and his wife were tried together during a bench

trial. The trial court overruled Cairns' pretrial motion to

suppress his wife's statement. Detective Ruth Baker, who took

Mrs. Cairns' statement, testified as to its content, and the

statement was introduced into evidence. The prosecuting

attorney relied, in part, on Mrs. Cairns' statement in her

closing argument, and the trial court found Cairns guilty of six

of the seven charges against him. 9

9
The trial court granted Cairns' motion to strike Count #7,
which charged Cairns with taking indecent liberties with NC on
or about May 1, 1998 through August 31, 1998. The court found
that charge was "merged into some of the other charges."

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 II.

ANALYSIS

A.

Marital Privilege

Cairns alleges the admission of his codefendant's statement

violated the marital privilege protection provided by Code

§ 19.2-271.2. This allegation is without merit.

Code § 19.2-271.2 provides that "[i]n criminal cases . . .

neither [husband nor wife] shall be compelled to be called as a

witness against the other, except [in certain specified

instances]." The statute pertains specifically to testimony in

criminal cases. The statement of Cairns' codefendant, his wife,

was given to police prior to trial. Mrs. Cairns was not

compelled to testify against Cairns, and, in fact, did not

testify at their joint trial. Therefore, Code § 19.2-271.2 does

not apply in this case. Livingston v. Commonwealth, 21 Va. App.

621, 628, 466 S.E.2d 757, 760 (1996) (statute does not pertain

to information given during pretrial investigations).

B.

Virginia's Statement Against Penal Interest Hearsay Exception

Cairns also alleges that his wife's statement constituted

inadmissible hearsay under Virginia law. We disagree.

A statement made by an unavailable witness that is against

the witness' penal interest is admissible as an exception to the

hearsay rule if three requirements are met: (1) the declarant

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must be unavailable to testify at trial; (2) the statement must

be against the declarant's interest at the time it is made; and

(3) the declarant must be aware at the time he or she makes the

statement that the statement is against his or her interest.

Rankins v. Commonwealth, 31 Va. App. 352, 361, 523 S.E.2d 524,

529 (2000). In addition, where the declarant "seeks to limit

[her] culpability by implicating others," Lilly v. Commonwealth,

255 Va. 558, 573, 499 S.E.2d 522, 533 (1998), rev'd on other

grounds, 527 U.S. 116 (1999), the reliability of the statement

must be established by evidence other than the statement itself

connecting the declarant to the crime. Id.; Rankins, 31 Va.

App. at 362, 523 S.E.2d at 529.

We hold that the trial court did not abuse its discretion

in admitting Mrs. Cairns' statement as an exception to the

hearsay rule. Under the Fifth Amendment, she could not have

been compelled to testify; therefore, she was an unavailable

witness. Lilly, 255 Va. at 573, 499 S.E.2d at 533.

In her statement to the police, Mrs. Cairns admitted

kissing the "top part" of WW's vagina, and she admitted

participating in the videotaping of her daughters while they

were engaged in sexual conduct with Cairns. Therefore, because

she implicated herself as a participant in at least one crime,

her statement was clearly against her penal interest at the time

it was made.

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 The record also shows that Mrs. Cairns knew her statement

was against her interest at the time she made it. Although she

was not under arrest when she spoke with the police, she knew

her daughters had made allegations concerning the events that

had occurred. Furthermore, she initially denied having any

knowledge of and denied participating in the alleged events.

Only after the interviewing officer reminded her that she had

"already been convicted of some stuff in the past," and told her

"[t]he best thing you can do is cooperate with us and tell us

the truth and the whole truth," Mrs. Cairns admitted her

involvement. The evidence clearly establishes that Mrs. Cairns

understood her statement was against her penal interest.

In her statement, she attempted to minimize her

involvement, shifting some of the blame to Cairns. When

initially asked about the videotaping, she replied, "I can't

tell you a whole lot, most of the time that anything that goes

on in that house at night, I'm at work." When she ultimately

admitted having filmed her husband with the girls, she denied

knowing where the tapes were located, stating, "if anything like

that was made, [Cairns] always did somethin' with 'em." When

asked if she ever participated in the activities on camera, she

replied, "Nope. Sat there with the video camera." Mrs. Cairns

told the police that her husband had sex with WW but said she

left the room while the two were engaged in the conduct.

Finally, she told police she disapproved of what her husband was

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doing with the daughters, but stated, "there ain't a lot I can

do about it, simply because he's quite a bit stronger than I am.

He can overpower me . . . ." Although Mrs. Cairns attempted to

shift the responsibility for the activities to her husband, her

statement and her involvement in the alleged crimes were

corroborated on many points by WW and NC, thus "supporting the

conclusion that the statement as a whole was reliable enough to

be admitted." Rankins, 31 Va. App. at 364, 523 S.E.2d at 530.

Therefore, the court did not abuse its discretion in

admitting the statement as an exception to the Virginia hearsay

rule.

C.

Sixth Amendment Confrontation Clause

1. Admissibility of the Statement

Cairns next alleges the admission into evidence of his

codefendant's statement during their joint trial violated his

Sixth Amendment rights. We agree.

The Sixth and Fourteenth Amendments to the United States

Constitution give a defendant in a state criminal trial the

right "to be confronted with the witnesses against him." U.S.

Const. amend. VI, amend. XIV. When the prosecution introduces

the statement of a codefendant who invokes his or her Fifth

Amendment right to not testify, the defendant is denied the

right to confront or cross-examine the witness, thus implicating

the Sixth Amendment. Lee v. Illinois, 476 U.S. 530, 541 (1986).

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 A hearsay statement made by an unavailable witness may only

be introduced if (1) the evidence falls within a firmly rooted

hearsay exception; or (2) the evidence contains particularized

guarantees of trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66

(1980). Although statements by a codefendant may fall under the

Virginia "statement against interest" hearsay exception, as

discussed in the previous section, the United States Supreme

Court has held that such statements are inherently unreliable,

Lee, 476 U.S. at 541, 545, and, therefore, do not fall within a

firmly rooted hearsay exception for Sixth Amendment purposes.

Lilly v. Virginia, 527 U.S. 116, 134 (1999) (plurality opinion).

Therefore, a statement by a codefendant can only be

introduced if the statement contains "particularized guarantees

of trustworthiness such that the adversarial testing of the

statement would be expected to add little, if anything, to the

statement's reliability." Dearing v. Commonwealth, 259 Va. 117,

123, 524 S.E.2d 121, 124 (2000). In determining whether a

codefendant's statement contains such guarantees of

trustworthiness, we must examine the statement itself and the

circumstances surrounding the making of the statement. Rankins,

31 Va. App. at 369, 523 S.E.2d at 532. It is irrelevant that

other evidence introduced at trial corroborates the

codefendant's statement. Lilly, 527 U.S. at 137-38 (such

"bootstrap[ping] on the trustworthiness of other evidence" is

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not allowed). 10 Additionally, the fact that the statement was

made voluntarily, following the reading of one's Miranda rights,

is also irrelevant in determining the trustworthiness of the

statement. Id. at 138.

"When evaluating circumstances surrounding the confession,

a court should consider the extent to which the accomplice was

'free from any desire, motive, or impulse . . . to mitigate the

appearance of his own culpability by spreading the blame [to the

defendant] . . . .'" Rankins, 31 Va. App. at 368, 523 S.E.2d at

532 (quoting Lee, 476 U.S. at 544). In determining whether the

codefendant was free from a desire to mitigate her involvement,

we must consider factors such as whether the codefendant made

the statement to the police, while in custody, Lilly, 527 U.S.

at 139, whether the statement was given in response to questions

from police officers who "knew what they were looking for," Lee,

476 U.S. at 544; see also Lilly, 527 U.S. at 139; Bass v.

Commonwealth, 31 Va. App. 373, 384, 523 S.E.2d 534, 539 (2000),

whether the codefendant knew she had already been implicated in

the alleged crimes, id. at 384, 523 S.E.2d at 539, whether there

was any contemporaneous cross-examination conducted, id., and

10
This is the main distinction between the Virginia
statement against penal interest hearsay exception and the
requirements of the Confrontation Clause. Under the former, the
existence of evidence corroborating the codefendant's statement
can support a finding that the statement is reliable and, thus,
admissible. Under the Confrontation Clause, the existence of
such corroborating evidence may not be considered in determining
the reliability of the statement.

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whether the codefendant attempted to shift blame to the

defendant, Lilly, 527 U.S. at 137; Rankins, 31 Va. App. at 370,

523 S.E.2d at 533.

In this case, Mrs. Cairns made the statement to police,

while at the police station, alone in an interviewing room with

two officers. Although she was not under arrest at the time she

made the statement, and was so informed by the interviewing

officer, she knew at the time of the interview that the children

had made allegations concerning the conduct that had occurred in

the house. In addition, the officer asked her specific, leading

questions, and told her, "we're aware of . . . a lot of stuff,

so the best thing you can do is be honest with us." Finally, in

her statement to the police, Mrs. Cairns attempted to mitigate

her reported participation in the offenses and to shift blame to

Cairns. She denied having knowledge of and being involved in

most of the alleged criminal activities, stating, "[m]ost of the

time that anything that [sic] goes on in that house at night,

I'm at work." She admitted holding the camera during the

videotaping, but denied participating, and she stated that "if

anything like that [a videotape] was made, Robert [Cairns]

always did somethin' with 'em. I never knew where they went."

When asked how she felt about Cairns having sex with her

daughter, and why she did not stop him, she replied, "there

ain't a lot I can do about it, simply because he's quite a bit

stronger than I am."

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 We find that because of the content of the statement and

the circumstances under which the statement was given, the

statement does not contain the requisite particularized

guarantees of trustworthiness. Therefore, the trial court erred

when it admitted the statement.

2. Harmless Error

Although we find the statement was inadmissible under the

Sixth Amendment, constitutional error does not compel reversal

if the error was harmless beyond a reasonable doubt. Lilly v.

Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999).

Such error cannot be deemed harmless in cases where "'there is a

reasonable possibility that the evidence complained of might

have contributed to the conviction.'" Id. (quoting Chapman v.

California, 386 U.S. 18, 23 (1967)). Factors which provide

guidance to the resolution of the issue include: (1) whether

the statement was cumulative of evidence already introduced; (2)

whether the statement was corroborated or contradicted by other

evidence in the case; (3) the importance of the statement to the

Commonwealth's case; and (4) the overall strength of the

Commonwealth's case. Id. at 551, 523 S.E.2d at 209; Dearing,

259 Va. at 123, 524 S.E.2d at 125; see also Harrington v.

California, 395 U.S. 250, 254 (1969) (where remaining evidence

of guilt is "overwhelming," error deemed harmless).

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 While Mrs. Cairns' statement corroborated some of the

allegations made by her daughters, WW and NC, 11 her statement

contradicted Cairns' admitted statement in which he denied

participating in any sexual activity with his daughters. Cf.

Bass, 31 Va. App. at 390-91, 523 S.E.2d at 543 (fact that the

codefendant's and the defendant's statements "interlocked"

contributed to harmlessness of error).

Moreover, the only other evidence pointing to Cairns' guilt

raised issues of credibility and, for that reason cannot be

considered "overwhelming." See Lilly, 258 Va. at 552, 523

S.E.2d at 209. In Lilly, three defendants shot and killed a

man. The only evidence that Lilly was the triggerman came from

the testimony of one of his codefendants, Barker, and the

statement given to police prior to trial by his other

codefendant, his brother Mark. The United States Supreme Court

held Mark's statement was inadmissible under the Sixth Amendment

and remanded the case to the Virginia Supreme Court for a

harmless error analysis. Lilly, 527 U.S. at 139-40. On remand,

the Virginia Supreme Court noted that, excluding Mark's

inadmissible statement, Lilly's conviction rested on the

credibility of codefendant Barker's testimony. It further

considered the likely impact of Mark's statement, "coming as

11
Mrs. Cairns admitted kissing the "top part" of WW's
vagina, that NC had to perform oral sex on Cairns, that Cairns
had sex with WW, and that she videotaped Cairns "kissing" and
"touching" the girls on the bed.

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[it] did, from Lilly's brother[, it] undoubtedly carried weight

with the jury." Lilly, 258 Va. at 553, 523 S.E.2d at 210. The

Court found that the remaining evidence, other than Mark's

statement, was not overwhelming. Given the nature of the other

evidence in the case, resting as it did on the credibility of

Barker's testimony, viewed together with the absence of physical

evidence that Lilly was the triggerman and the absence of a

confession by the defendant, id. at 552, 523 S.E.2d 209-10, the

Court concluded the admission of the statement was not harmless.

Id. at 553, 523 S.E.2d at 210; see also Rankins, 31 Va. App. at

372-73, 523 S.E.2d at 534 (the erroneously admitted statement

was the only direct evidence of defendant's guilt); cf. Schneble

v. Florida, 405 U.S. 427, 431 (1972) (in finding the remaining

evidence to be overwhelming, the Court relied on the fact that

the defendant confessed, and, in fact, the Court held that

without the defendant's confession, the prosecution's case was

"virtually nonexistent"); Harrington, 395 U.S. at 253-54 (the

defendant's own statements placed him at the scene of the

crime); Pitt v. Commonwealth, 260 Va. 692, 695-96, 539 S.E.2d

77, 79 (2000) (the defendant was apprehended at the scene

shortly after the crime, and the defendant even admitted that he

had attacked and struggled with the victim); Dearing, 259 Va. at

124, 524 S.E.2d at 125 (the police apprehended the defendant,

who matched the description given by the victim, shortly after

the crime and found physical evidence on the defendant linking

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him to the crime); Bass, 31 Va. App. at 391-92, 523 S.E.2d at

543 (in finding the remaining evidence to be overwhelming, we

relied heavily on the defendant's own confession).

In the present case, Cairns not only did not confess to the

alleged crimes, he denied the allegations. In addition, no

physical evidence was introduced linking him to the crimes. 12

Without Mrs. Cairns' statement, the Commonwealth's case rested

solely on the credibility of the parties' two daughters. 13

Although their testimonies, even uncorroborated, may have been

sufficient to support the convictions, Fisher v. Commonwealth,

228 Va. 296, 299, 321 S.E.2d 202, 203-04 (1984), the test in a

harmless constitutional error analysis is not whether the

12
The alleged videotapes were never found.
13
Although the Commonwealth argues that the testimony of
two of WW's friends, JW and SS, corroborated the allegations
made by WW and NC, the events involving JW and SS were not the
basis of any of the charges against Cairns. See Lilly, 258 Va.
at 552-53, 523 S.E.2d at 210 (the purported corroborating
evidence must relate to the critical issues).
WW's friend, JW, a female, confirmed WW's and NC's
testimony that Cairns played "truth or dare" with the three
girls. Following dares by Cairns, the three girls performed
various acts, such as, "streaking" outside, doing a "pole
dance," "French kiss[ing] each other," "licking mayonnaise off a
hot dog," "masturbat[ing] with a hot dog," and taking a cold
shower together.
WW's friend, SS, a male, confirmed WW's and NC's testimony
that SS, WW, NC, Cairns and Cairns' wife participated in a game
of "truth or dare" together. Based upon dares made by Cairns,
WW was naked the entire time, WW performed oral sex on SS, WW
had oral sex with Mrs. Cairns, and Mrs. Cairns had "sex" with
SS. NC participated by getting naked and running around in a
circle, but refused to have "oral sex" with SS, so Cairns sent
her to her room. WW was dared by Cairns, but refused to have
"sex" with SS.

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remaining evidence is sufficient, but "'whether there is a

reasonable possibility that the evidence complained of might

have contributed to the conviction.'" Williams v. Commonwealth,

32 Va. App. 395, 399-400, 528 S.E.2d 166, 168-69 (2000) (en

banc) (quoting Thompson v. Leeke, 756 F.2d 314, 316 (4th Cir.

1985)).

We find a reasonable possibility that the statement

influenced the verdict in this case. Although Mrs. Cairns'

statement did not corroborate all of the details of her

daughters' testimonies, it cannot be said that the statement,

coming as it did from her, the accused's wife, played no role in

bolstering the girls' credibility and that it did not influence

the court's determination of guilt. Lilly, 258 Va. at 553, 523

S.E.2d at 210 ("those statements, coming as they did, from

Lilly's brother undoubtedly carried weight with the jury"). In

Lilly, the Court held:

[T]he 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
more credible, and thus, to taint the jury's
determination of the facts.

Lilly, 258 Va. at 553, 523 S.E.2d at 210.

Based on these reasons, we cannot say the error of

introducing the codefendant's statement in this case was

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harmless beyond a reasonable doubt. We reverse the convictions

and remand for a new trial if the Commonwealth be so disposed.

Reversed and remanded.

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