Ellison v. Commonwealth

COMPTON, J.,

dissenting.

In my opinion, the majority of the court today emasculates the third-party-confession rule adopted in Virginia in Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923), and followed in Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d 318 (1950). A new dimension has been added to the former law and, as illustrated in the application of the new rule to the facts of this case, the useful Hines doctrine is diluted as an effective tool in the search for truth in a criminal case.

I agree with my brethren that “it is settled in Virginia that, while a declaration against penal interest is recognized as an exception to the hearsay rule, such a declaration made out of court by a dead or otherwise unavailable witness is admissible only upon a showing that the declaration is reliable.” I also agree that the trial court should not admit a “bare confession” unless there is something “substantial other than the bare confession to connect the declarant with the crime.” But I do not agree with the ingredient today appended to the Hines rule, viz., that for the declaration to be admissible the trial court must be satisfied that “the content of the confession is trustworthy.” In the future, the court says, there must be evidence from more than one witness that the declarant confessed to them, extrinsic evidence connecting the declarant with the crime, “or a satisfactory combination of both.” This requirement goes too far. The application of this extra dimension can only result, as it does in this case, in usurpation of the jury’s function of determining weight of evidence and credibility of witnesses. The Hines court emphasized the importance of such a consideration at least twice. Stating that third party confessions “ought to go to the jury for what they are worth”, 136 Va. at 740, 117 S.E. at 846, the court said:

*413If there be doubt about whether such declarations were actually made, or, if made, were true, such doubts, like any others as to the weight and credibility of testimony, ought to be settled by the jury. It may be true that evidence of extra judicial confessions is susceptible of abuse, but the same thing is equally true as to extra judicial admissions made against pecuniary or proprietary interests, and such admissions are now universally admitted, even when made by third parties to the litigation, if they are material to the issue. If a charge involving the life or liberty of a citizen, and depending solely upon circumstantial evidence, cannot stand the test of allowing the jury to determine from the testimony whether a third party has in fact confessed guilt, and if so whether such confession was true, a conviction ought not to follow.

136 Va. at 740-41, 117 S.E. at 846. The court also noted:

Unfortunately, as all must concede, witnesses sometimes swear falsely, and it cannot be doubted that alleged confessions of crime by third parties may easily be foisted on the courts and juries, but so may alleged admissions in civil cases, as, for example, regarding the location of a corner tree or other real estate controversy. As to both classes of admissions they must be admitted, if at all, because the evidence itself is important to the ends of justice, and because it may be assumed that no man will speak falsely to his own hurt. The truth of the admission itself, and the credibility of the witness who undertakes to repeat the admission, must, like the truthfulness of all other testimony, address itself to and be settled by the jury.

136 Va. at 745, 117 S.E. at 848.

*414In my view, the disputed evidence in this case should have been admitted because Brown’s declaration bore sufficient indicia of reliability and trustworthiness to take it out of the realm of inadmissible hearsay and to bring it within the area of probative evidence to be weighed by the triers of fact. For example, Hampton stated Brown and a companion tried to sell her a radio; a radio was stolen in the robbery. Also, Brown was quoted as saying he was “supposed to have splattered some [man]” at Carma’s; the killing was by a shotgun blast. In addition, Hampton said Brown complained “[we] didn’t get but a lousy hundred dollars and this radio”; these items were subjects of the theft. Moreover, Brown was said to be concerned about the participation in the prosecution of a “Betty”; a person by that name was employed at Carma’s. Furthermore, based on Hampton’s testimony, Brown was arrested and charged with the crimes; he was certified by the general district court to the grand jury, upon a finding of probable cause; and he was indicted by the grand jury, upon another finding of probable cause. A declaration buttressed by such circumstances is not a “bare confession” in any sense of that phrase, I submit.

The majority’s addition of the requirement that the trustworthiness of the content of the confession must be demonstrated to the satisfaction of the trial judge ignores the rationale which supports the creation of an exception to the hearsay rule for declarations against penal interest. As the Hines court recognized,

Hearsay evidence is excluded . . . because it lacks the sanction of an oath and the test of cross-examination, and facilitates the use of perjured testimony____[0]ne of the exceptions to this rule, universally recognized, is that relevant declarations against interest, where the declarant has since died or otherwise become unavailable as a witness, are receivable in evidence. The basis of this exception to the rule is that the evidence itself is important to the ends of justice, and that the element of self interest affords a reasonably safe substitute for the oath and cross-examination as a guarantee of truth.

*415136 Va. at 743, 117 S.E. at 847. Thus the mere adoption of the exception recognizes “that a statement asserting a fact distinctly against one’s interest is unlikely to be deliberately false or heedlessly incorrect, and is thus sufficiently sanctioned, though oath and cross-examination are wanting.” 5 J. Wigmore, Evidence in Trials at Common Law § 1457 (Chadbourn rev. 1974). Once a bare confession is corroborated by evidence connecting the declarant with the crime, the trustworthiness of the content of the confession is presupposed because it is against interest and the weight of the confession and its credibility are issues for resolution by the jury.

In its effort to justify the conclusion that the content of the confession was unreliable, the majority argues that the unique details of the crime were common knowledge “on the street” and thus Brown could have fabricated his statement to Hampton. But that conclusion of untrustworthiness is only one of two permissible inferences to be drawn from these facts. Another equally compelling deduction, disregarded by the majority, is that Brown’s confession was true, especially since it furnished the basis for findings of probable cause in two separate judicial proceedings, at one of which the witness Hampton was subject to cross-examination. I would allow the jury to choose between the inferences; the majority has now authorized the trial judge to make the selection.

In my opinion, the unnecessary narrowing of the Hines rule has resulted in a transfer to the trial court of the jury’s perogative to weigh the evidence and decide the credibility of witnesses in the area of third-party confessions.

For these reasons, I think the trial court erred in refusing to receive Hampton’s testimony in evidence. I would therefore reverse the convictions.

POFF, J., joins in this dissent.