Opinion
Record No. 2460-02-2.
July 13, 2004.
Upon a Rehearing En Banc.
Gregory R. Sheldon (Goodwin, Sutton DuVal, P.L.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Felton, Kelsey and McClanahan.
By memorandum opinion dated December 23, 2003, a divided panel of this Court reversed the judgment of the trial court. We stayed the mandate of that decision and granted rehearing en banc.
Upon rehearing en banc, it is ordered that the December 23, 2003 mandate is vacated, and the judgment of the trial court is affirmed for the reasons set forth in the panel dissenting opinion. The appellant shall pay to the Commonwealth of Virginia thirty dollars damages.
I agree with the earlier panel majority opinion that we should reverse this conviction. See Anderson v. Commonwealth, Record No. 2460-02-2 (Va.Ct.App. December 23, 2003). I would add, however, the following additional reasons for reversing this conviction.
In a criminal case, where the quantum of proof must be beyond a reasonable doubt, the imperative to secure convictions free of speculation, surmise, and conjecture is constitutionally based. See In re Winship, 397 U.S. 358 (1970). Thus, when the proof relied upon by the Commonwealth is wholly circumstantial, the following principles pertain:
All necessary circumstances proved must be consistent with guilt and inconsistent with innocence. It is not sufficient that the evidence create a suspicion of guilt, however strong, or even a probability of guilt, but must exclude every reasonable hypothesis save that of guilt. To accomplish that the chain of circumstances must be unbroken and the evidence as a whole must be sufficient to satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other reasonable hypothesis and to a moral certainty.
Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).
In this circumstantial evidence case, however, the only evidence offered by the Commonwealth that did not require the trier of fact to speculate, conjecture, or surmise while assessing Ernestine Anderson's guilt or innocence was evidence of opportunity. Yet, it is well established that "mere opportunity to commit an offense raises only `the suspicion that the defendant may have been the guilty agent; and suspicion is never enough to sustain a conviction.'" Christian v. Commonwealth, 221 Va. 1078, 1082, 277 S.E.2d 205, 208 (1981) (citation omitted).
The evidence proved that Anderson entered the receptionist's office while the receptionist was at her desk engaged in a personal telephone conversation. The receptionist testified that she put the caller "on hold" while she informed Anderson that her employer, Hancock, did not handle the type of employment case for which Anderson was seeking the services of an attorney. She gave Anderson the name of another attorney and gave her directions to his office. The receptionist testified that she then " ran into . . . Hancock's office to continue [her] personal call to [the receptionist's] attorney" as Anderson stood at the door to leave the receptionist's office. Explaining that she did not stay to observe whether Anderson left the office, she testified as follows:
Q: . . . At the time that you went back to . . . Hancock's office, where was . . . Anderson?
A: She was standing at the door in my office.
Q: At that time, did you hear the door open or close?
A: No.
Q: So, you went into . . . Hancock's office and continued your telephone conversation?
A: Yes, I did.
Relying upon the trial judge's finding that "[t]he unique thing about the case . . . is this front door," the Commonwealth contends the trier of fact could conclude that because the testimony proved the front door was "very loud and very hard to open" and the receptionist did not hear the door's noise, Anderson remained in the office alone with the purse. I disagree. Even when evidence is sufficient "to elevate suspicion to the level of probability, [it does] not relieve the Commonwealth of the burden of producing evidence which establishes guilt beyond a reasonable doubt." Hyde v. Commonwealth, 217 Va. 950, 954, 234 S.E.2d 74, 78 (1977). Here, the receptionist did not observe the fact the Commonwealth sought to prove — that Anderson remained in the office. Instead, the Commonwealth sought to prove this fact by testimony that the receptionist did not hear the door open. In short, the Commonwealth contends the trier of fact could conclude that Anderson remained in the office because (1) the door makes a noise when it is opened or closed, (2) the receptionist did not hear the noise the door generally makes when it opens or closes, and (3) therefore, Anderson did not leave the office. This is a leap in logic that would require the trier of fact to speculate that Anderson, whom the receptionist saw at the door as if leaving, did not open the door and leave when the receptionist "ran" to the other room, which was six to ten feet down the hallway, to resume her personal telephone call.
The Supreme Court has long held that testimony establishing that a witness did not hear a sound has little probative value unless evidence also establishes that the witness "had good opportunity to . . . hear, and the evidence demonstrates that [the witness] probably would have . . . heard the event if it had occurred, or it is shown that [the witness'] attention was drawn to the matter controverted." Norfolk W. Ry. Co. v. Greenfield, 219 Va. 122, 130-31, 244 S.E.2d 781, 785 (1978). Commenting upon the testimony of a witness who did not hear a train whistle, the Court noted in Southern Ry. Co. v. Bryant, 95 Va. 215, 28 S.E. 183 (1897), that the witness' "testimony . . . was simply that he did not hear the whistle. He mentioned no circumstance to show that he was listening for it, or that there was anything to direct his attention specially to it." Id. at 216, 28 S.E. at 184. The Court ruled, therefore, that the "evidence upon this point was merely negative, and may be left out of consideration." Id. See also White v. S. Ry. Co., 151 Va. 302, 312, 144 S.E. 424, 427 (1928) (holding that "`[n]egative testimony proper is entitled to no weight'").
The evidence in this case established that the receptionist last saw Anderson at the door and "thought she was leaving." The receptionist, by her own testimony, "ran into . . . Hancock's office to continue [her] personal call." Nothing in the receptionist's testimony established that her attention was drawn to Anderson. Rather, her testimony establishes that she was alert and attentive to her personal circumstance and quickly left the room to resume the telephone conversation with her personal attorney, whom she had put "on hold." This evidence is akin to the deficiency the Court noted in Norfolk Portsmouth Belt Line R.R. Co. v. Mueller Co., 197 Va. 533, 90 S.E.2d 135 (1955):
It will be noted from the . . . evidence that [the witness] nowhere claims to have listened for an approaching train. If he made any special effort to hear the ringing of the bell or the approach of the train he does not say so. He emphasizes the fact that he made an effort to see but . . . never says that he listened or made an effort to hear. He contents himself with saying "I heard no [noise]."
Id. at 538, 90 S.E.2d at 139. The Court ruled that in the absence of predicate facts concerning the witness' attention "evidence such as here presented (and in many instances stronger) . . . [is] lacking in probative value." Id. See also Norfolk W. Ry. Co. v. Eley, 157 Va. 568, 579, 162 S.E. 3, 6 (1932) (holding that a witness' testimony that he did not hear a whistle was "testimony [that] is negative and without probative value").
I would hold that the testimony of the receptionist was insufficient to prove that Anderson remained in the room and to support an inference that she stole the purse. The receptionist's testimony that she did not hear the door open as she "ran" to the other office was not coupled with a sufficient predicate, consisting of additional testimony or circumstances, to show that her attention and acuity were focused upon the occurrence of the event. Indeed, the receptionist's own testimony established, instead, that the focus of her attention and the thrust of her activities were related to her personal telephone call.
Significantly, the evidence proved that the receptionist was in Hancock's office for an undisclosed time, but in excess of three minutes, while conversing on the telephone about her personal matter. During that time, both the front door and the rear door to the office were unlocked. After the receptionist had been in Hancock's office for two or three minutes, she "hear[d] the door open and close." As further evidence of her distraction, the receptionist testified she did not cease her personal telephone conversation when she heard the door open and close. Moreover, she did not testify that she was looking toward the hallway that led from the rear door to the front door. No other evidence proved where the receptionist stood or sat while she continued her personal telephone conversation for another two or three minutes in Hancock's office before returning to her desk. The receptionist discovered that her purse was missing several hours later, which was three hours after she placed it on the floor.
No evidence excludes the reasonable hypothesis that a third person entered the back door and exited the front door. No evidence excludes the reasonable hypothesis that a third person entered and exited the front door. Lastly no evidence excludes the reasonable hypothesis that a third person entered the front door and exited the rear door. The conviction in this case rests solely upon the speculative hypothesis that Anderson was in the room alone with the purse and then stole it. Therefore, I would "hold that the evidence viewed in the light most favorable to the Commonwealth established only a suspicion or a probability of guilt and was insufficient as a matter of law to support the grand larceny conviction." Tarpley v. Commonwealth, 261 Va. 251, 257, 542 S.E.2d 761, 764 (2001).
It is ordered that the trial court allow counsel for the appellant a total fee of $925 for services rendered the appellant on this appeal, in addition to counsel's costs and necessary direct out-of-pocket expenses.
The Commonwealth shall recover of the appellant the amount paid court-appointed counsel to represent her in this proceeding, counsel's costs and necessary direct out-of-pocket expenses, and the fees and costs to be assessed by the clerk of this Court and the clerk of the trial court.
This order shall be certified to the trial court.
Costs due the Commonwealth by appellant in Court of Appeals of Virginia:
Attorney's fee $925.00 plus costs and expenses