Today, August 16, 2005, the Court of Appeals of Virginia affirms convictions in two criminal appeals. The court also issues a lengthy affirmance in a child custody contest between a child’s natural father and grandfather.


Before 1999, the general rule in criminal cases was that a victim who was going to testify at trial was subject to being separated, or excluded from the courtroom at all times other than when he was actually on the witness stand. In that sense, the rule comported with the practice in civil cases.

But in 1999, in order to address a perception of unfairness to victims, the General Assembly amended the statutes in such a way that the victim of a crime was thereafter presumed to be permitted to stay in the courtroom throughout the trial, even if he was to testify. Code (1950) §19.2-265.01. Only if the court determines that the presence of the victim would impair the fairness of a trial can the presumption be overcome and the victim excluded from the courtroom.

Today the Court of Appeals affirms a trial court’s decision to permit a victim to remain in the courtroom over the defendant’s objection. In Hernandez-Guerrero v. Commonwealth, the defendant was one of several defendants charged in an attack that left one victim dead and another seriously injured. The defendant argued that the exception applied in this case, because the victim would be permitted to hear the testimony of others before taking the stand, thus creating the possibility that his testimony could be shaped by the stories of others, instead of coming from his own recollection. The appellate court agrees with the trial court that this assertion is insufficient to trigger the exception: “To support a claim of unfairness . . . a defendant must proffer to the trial court facts which, if true, would make the victim witness uniquely vulnerable to being manipulated, consciously or not, by the suggestive power of other witnesses’ testimony.” (Emphasis supplied) Here, the defendant offered only generalized arguments that failed to meet this threshold.

In the other criminal case decided today, the court affirms a conviction obtained in part by the use of adoptive admission testimony. In Lynch v. Commonwealth, the defendant was implicated in a robbery and murder by a witness who heard one perpetrator talking about the crime while the defendant was outside the house in which the conversation took place. Near the conclusion of the perpetrator’s story, the defendant walked up the stairs, saw the conversation going on, and asked the perpetrator, “Why are you telling them what we just did?” Over defendant’s objection, the witness was permitted by the trial court to recite the perpetrator’s entire statement, including those portions that were made when the defendant was unquestionably out of earshot.

On appeal, defendant argued that the adoptive admission doctrine only applied to situations where the defendant heard and understood the statement. Since the witness’ testimony put the defendant elsewhere, defendant could not be held to have “adopted” portions of the statement, including the crucial assertion, “We just shot a lady,” that occurred while he was outside. He contended that in order to permit such testimony, the Commonwealth must “clearly show” that the statement falls within an exception to the hearsay rule. Where the evidence of defendant’s presence was unclear, such evidence should be excluded.

Today, the appellate court finds that the evidence was properly admitted as an adoptive admission. The court distinguishes cases where admissions were held to be passively “adopted ” (by silence in the face of an accusation) from this situation, where the evidence showed that the defendant made an affirmative statement acknowledging the story. It also finds that, despite the requirement that the proponent of hearsay “clearly show” that an exception applies, the standard of proof for such a finding is a preponderance of the evidence, not clear and convincing, as the defendant had argued.

The court’s decision is authored by Judge Humphreys, joined by Judge Clements. Judge Benton issues a dissent, finding that the admission of the evidence was both erroneous and prejudicial.

Domestic relations

In two consolidated appeals, the court affirms a trial court’s orders in reciprocal petitions by the father and grandfather of a now seven-year-old girl whose mother died in 2001. The child was the product of an adulterous affair; the father left his wife shortly before the child was born, and was never married to the child’s mother.

The mother was diagnosed in 1999 with terminal cancer. Before her death, the parties initiated proceedings in a South Carolina court to determine custody and visitation issues that would apply after the mother’s passing. That litigation resulted in the entry of a consent order that was unfortunately lacking in specificity in several key areas.

After the mother died, the grandfather assumed primary physical custody, with joint legal custody shared by the father and grandfather. The goal stated in the consent order was for the child eventually to be reunited with her father.

Three months after the mother died, the father began filing motions and petitions in juvenile court in Fairfax, where the grandfather and child then lived. The petitions sought first visitation, and then custody, of the child. The grandfather responded by filing his own petition for sole legal and full physical custody. Over the next 18 months, the court conducted several hearings, culminating in the entry of a consent order in June 2003 that essentially retained the previous custody and visitation status. Despite the fact that this order was by consent, the father appealed to Circuit Court.

That court conducted a seven day ore tenus hearing, eventually ruling in July 2004 that joint legal custody would remain, but that physical custody would be transferred to the father, due to a change in circumstances since the South Carolina decree was entered. Both litigants appealed; the result is today’s ruling in Denise v. Tencer.

The appellate court’s analysis is detailed, and merits careful review by those litigating grandparents’ custody and visitation cases. It begins with a discussion of the jurisprudential context of grandparents’ rights, noting that they do not enjoy the same preferential treatment under the law as parents. But the court distinguishes several recent holdings, given the history of the case, specifically including the grandfather’s extensive role in raising the child in the years following her mother’s death. It holds that the trial court correctly afforded this grandfather an enhanced legal position, precisely because he had been entrusted with custody; the father had twice consented to such custody, tacitly or explicitly acknowledging the grandfather’s fitness; and the grandfather was acting in the child’s best interests.

Since this was an effort by the father to modify an existing custody order, he bore the burden of proving (1) a material change of circumstances and (2) that the best interests of the child required a change of custody. The mother’s death was specifically contemplated by all parties at the time of the original South Carolina order, so that factor did not tilt the balance in favor of the father on legal custody.

The grandfather appealed the court’s award of primary physical custody to the father on the basis of several evidentiary rulings, notably including the failure of the father to disclose information in discovery. The Court of Appeals notes that the grandfather did not move to compel such information under Rule 4:12 in the Circuit Court, so it declines to reverse the trial court’s decision to permit the challenged testimony.

There are three lessons from this case for practitioners. First, the status of a non-parental legal custodian is stronger than you might think. The holding that the grandfather is entitled to a greater consideration in this case than he would in an original proceeding is the most important legal holding in the case, occupying several pages of the opinion. Second, in discovery matters, it is not enough to request information; it is not even enough to object when your opponent fails to disclose what you have requested. You must (1) move to compel and (2) get a ruling on that motion, in order to prevent a waiver of the argument on appeal. Of course, the better course, with all sorts of discovery disputes, is to resolve them without going to court. And third, this saga offers a lesson in tragedy reminiscent of the recent case involving Terri Schiavo in Florida. Whether she stated her wishes in detail before her death or not, it is abundantly clear to this writer – and it should be to the litigants here as well – that the mother of this child would not have wished this type of childhood for her daughter. It is a reminder to update your wills; to make your wishes known in a clear and unambiguous way; and to hug your loved ones, every day.