Court issues pre-trial evidentiary orders

Where the parties contested the admissibility of testimony and argument relating to third-party guilt, the court issued its rulings after considering the parties’ arguments and briefs, as well as additional caselaw and statutory authority.

Opening argument

Defendant cannot delay his opening statement after evidence has been introduced. “Virginia Code § 19.2-265 relevantly states: ‘On the trial of any case of felony or misdemeanor and before any evidence is submitted on either side, the attorney for the Commonwealth and counsel for the accused, respectively, shall have the right to make an opening statement of their case.’ … (emphasis added).

“Defendant’s right to an opening statement is enumerated in Code§ 19.2-265, and while Defendant is not required to make an opening statement … that provision is explicit in that Defendant may not defer his opening statement after the introduction of evidence. …

“Additionally, where trial courts maintain ‘broad discretion in the supervision of opening statements, … this Court feels it necessary to state that neither party may introduce elements of argument in their opening statements….

“Further, neither party may refer to specific evidence as well, unless there is a good faith belief that the evidence will be offered and admitted into evidence.”

Legal standards

“In determining the admissibility of introducing evidence of third-party guilt, Virginia’s appellate courts have conclusively found that: ‘In Virginia, evidence that a crime was actually committed by someone other than the accused  is admissible  for the  purpose  of generating a  reasonable  doubt of the guilt of the accused.’

“‘Evidence tending to show that someone other than the defendant committed the crime generally raises a factual question for the jury. A defendant is entitled to present his version of the facts along with that of the prosecution so the jury may decide where the truth lies. …

“‘Such proffered evidence need only raise a question for the jury whether reasonable doubt of [the accused’s] guilt existed, not whether the proffered evidence was sufficient to prove a third person committed the offenses.’ …

“A defendant’s right to introduce evidence of third-party guilt is ultimately neither absolute nor all inclusive, however, as the Virginia Court of Appeals in Oliva v. Commonwealth [19 Va. App. 523 (1995) has found:

“‘The right to present evidence in one’s defense does not, however, permit a defendant to introduce evidence that merely suggests or insinuates that because a third party resembles the accused, the third party may have some connection to the crime.

“Such evidence is irrelevant; it tends to confuse and mislead a jury unless ‘evidence [has been] introduced … [that] points directly to guilt of a third party.’

“Thus, only ‘where there is a trend of facts and circumstances tending clearly to point out some other person as the guilty party, the [defendant] may introduce any legal evidence which is available tending to prove that another person committed the crime with which he is charged.’”

Carter

“Defendant may not introduce testimony, evidence, or argument of alleged third-party guilt of Christopher Carter in order to merely insinuate that he resembles the accused.”

Olivia is on point. “The Court of Appeals in Oliva was clear that a defendant may not ‘introduce evidence that merely suggests or insinuates that because a third party resembles the accused, the third party may have some connection to the crime.’ … (emphasis in original).

“The Court went on to state that while a defendant does not have to prove the guilt of the third party, there must be a presentment of ‘facts and circumstances tend[ed] clearly to point out some other person as the guilty party,’ thereby raising a question for the jury whether reasonable doubt existed.’”

Shabazz

“On the other hand, introducing testimony, evidence, or argument relating to third-party guilt of Jacqueline Shabazz is a more difficult determination for this Court. Trial courts maintain a great deal of discretion in refusing to admit third-party evidence of guilt … and based on the proffers thus far, the totality of the evidence submitted relating to gunpowder residue on her person, instances of domestic abuse, and the matter of her alleged affair may clearly indicate Jacqueline Shabazz for purposes of the third-party guilt doctrine … to raise a question for the jury whether reasonable doubt of Defendant’s guilt existed, not whether the proffered evidence was sufficient to prove Jacqueline Shabazz committed the offense at bar. …

“To this end, the Court cautions Defendant, emphasizing that the Court has only heard proffers thus far of anticipated evidence at trial. Introduction of mere inadmissible hearsay to indicate third-party guilt is, ultimately, inappropriate.”

Commonwealth v. Pettway, Case No. CR21-1085-0l, 05, 07, April 1, 2022, City of Newport News Circuit Court (Mills). Andrea Booden  for the commonwealth, James Ellenson for defendant. VLW 022-8-024, 5 pp.