Crawford v. Com.

670 S.E.2d 15

53 Va. App. 138

Anthony Dale CRAWFORD v. COMMONWEALTH of Virginia.

Record No. 1194-07-2.

Court of Appeals of Virginia, Richmond.

December 23, 2008.

Samantha E. Freed (Steven D. Rosenfield; Snook & Haughey, P.C., on briefs), Charlottesville, for appellant.

Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER and BEALES, JJ.

LARRY G. ELDER, Judge.

A jury found Anthony Dale Crawford (appellant) guilty of abduction with the intent to defile, rape, and capital murder of Sarah Crawford, his estranged wife, and also convicted him of use of a firearm in the commission of a murder, use of a firearm in the commission of an abduction, and grand larceny. On appeal, appellant argues that the trial court erred when it (1) permitted the Commonwealth to introduce into evidence an affidavit that was prepared as part of Sarah Crawford's request for a protective order against appellant, (2) permitted the Commonwealth to introduce into evidence Mrs. Crawford's non-testimonial statements to her co-workers, and (3) found the evidence was sufficient to support the jury's convictions for abduction with intent to defile and rape. We hold the trial court did not err in admitting the testimony concerning Mrs. Crawford's statements to her co-workers. We hold, in contrast, that the court's admission of the challenged affidavit to prove the truth of the matter asserted violated the Confrontation Clause and that its admission was harmless only as to appellant's conviction for grand larceny. As a result, we reverse all of his convictions except the conviction for grand larceny, which we affirm.

Because appellant also challenges the sufficiency of the evidence to prove rape and abduction with intent to defile, we evaluate the sufficiency of the evidence, including the improperly admitted affidavit, to assure that remand for retrial will not violate double jeopardy principles. We hold the evidence was insufficient to support appellant's convictions for rape, abduction with intent to defile, and use of a firearm in the commission of abduction, and thus we dismiss these indictments. Because we reverse and dismiss the convictions for rape and abduction with intent to defile, which provided the basis for convicting appellant of capital murder rather than first-degree murder, we also reverse the capital murder conviction. Because appellant does not challenge the sufficiency of the evidence to prove murder, we remand for retrial on an offense no greater than first-degree murder without considering the sufficiency of the evidence to prove this offense. For the same reason, we remand for retrial appellant's conviction for use of a firearm in the commission of murder.

I. BACKGROUND

Appellant and his wife, Sarah Crawford, separated in October of 2004. Several people were aware, based on statements made by Mrs. Crawford, that she was afraid of her husband. Mrs. Crawford told both a co-worker and her boss that she was afraid appellant might harm her. Prior to their separation, Mrs. Crawford even chose the location of her desk at work because it overlooked the parking lot and she wanted to be able to see appellant if he drove up to the building.

On October 29, 2004, after their separation, Mrs. Crawford went to the apartment in Manassas that she previously shared with appellant in order to pick up some items for her new home. Her parents accompanied her. Appellant was hostile and overbearing toward Mrs. Crawford, and he initially refused to let her take anything. Instead, he called the police. After the police arrived, appellant continued his hostile behavior, even though the police instructed him that he should allow Mrs. Crawford to take her things and asked him to calm down. At one point, appellant whispered something to Mrs. Crawford, and she asked appellant if he was threatening her. After the police left, when Mrs. Crawford said she wanted to take a particular table, appellant picked up the table and threw it across the room, breaking it.

Shortly after this incident, Mrs. Crawford went to the Prince William County Juvenile and Domestic Relations District Court (JDR court) and requested a preliminary protective order to prevent appellant from having contact with her. She signed an affidavit in which she described several incidents between her and appellant. The JDR court granted her request for a preliminary protective order. On November 16, 2004, at the request of Mrs. Crawford, that protective order was dismissed.

During and after the time that the protective order was in effect, Mrs. Crawford continued to have contact with her husband. Prior to the dismissal of the protective order, Mrs. Crawford paid appellant's tuition for a trade school he wanted to attend. Between November 1 and November 18, 2004, the parties communicated by telephone on numerous occasions, with several of the phone calls lasting ten to twenty minutes. A call that Mrs. Crawford made to appellant in the late afternoon of November 18 lasted twelve minutes, and when Mrs. Crawford met her parents for dinner a short time later, she appeared "really very happy." Mrs. Crawford also called appellant twice on the morning of November 19.

On November 18, 2004, Mrs. Crawford informed her employer that she would be late to work the next morning but would arrive no later than 1:00 p.m. However, she never appeared for work on November 19, which her manager described as surprising. Also, before leaving work on November 18, 2004, she had a co-worker print a document for her because her printer was not working. That document was a statement for appellant's signature purporting to release Mrs. Crawford's father from any liability on the apartment lease Mrs. Crawford's father had co-signed for the two while they were still residing together.

Between 9:30 and 10:30 a.m. on November 19, a hunter discovered a box beside the road. Inside the box was an invoice listing Mrs. Crawford's employer and her workplace address. Mrs. Crawford's employer indicated he had given the box to her to mail earlier in the week. The location where the box was found was approximately twenty miles from Mrs. Crawford's workplace. The box had a small amount of Mrs. Crawford's blood on it. Late in the afternoon on the same day, a Manassas resident found Mrs. Crawford's cell phone in his driveway. The following day, Mrs. Crawford was not at her home when her date arrived to pick her up, as they had previously arranged. When she did not answer the door, after several attempts, he left without seeing her. Mrs. Crawford's parents, who began worrying about their daughter, did not find anything out of place or unusual when they went into her home, except the cat's food and water bowls were empty. Mrs. Crawford's mother had last spoken to her daughter on the phone at about 10:00 p.m. on November 18, and when she entered Mrs. Crawford's apartment on November 21, she "knew" from the shape of the bed linens that Mrs. Crawford had slept in her bed the evening of November 18. On the nightstand beside the bed was a book titled in part, "Starting Over After an Abusive Relationship."

On November 22, 2004, the night manager of a Quality Inn in Charlottesville discovered Mrs. Crawford's body in one of the motel rooms. The room had been paid for by appellant for the night of November 19 to November 20, but no one had officially checked out of the room. Mrs. Crawford was lying on her back on the bed, naked and covered by bed linens. Her hands were folded over her abdomen, and her legs were in a "frog-like position." Although she had some bruising, the assistant medical examiner testified at trial that the marks did not look like "grab marks." There was no injury to her genitalia, although appellant's sperm was found in her vagina, and sperm from an undetermined source was found in or around her mouth and anus. No sperm was found on the bed or anywhere else in the room. The forensic scientist who examined the sperm taken from Mrs. Crawford's body could not determine its age.

A bloody motel towel was taped under Mrs. Crawford's right armpit, covering a fatal gunshot wound. The police did not find a gun or any clothing with a corresponding hole in the motel room. There was no gunshot residue on the body. The motel room did not contain any signs indicating that a struggle took place there, and nothing suggested that the shooting occurred in the room. Women's clothes and a purse containing Mrs. Crawford's identification were on the dresser, and a suitcase containing men's clothing and a pill bottle bearing appellant's name were also in the room. The television was on, a "Do Not Disturb" sign was on the door, and the air conditioning had been set so that the room was cold. Police found appellant's fingerprint in the bathroom.

According to the assistant medical examiner, Mrs. Crawford was shot through the right side of her chest, so that the bullet passed through her right lung and then through her vertebra, severing her spinal cord and lodging in her back. Upon the severing of her spinal cord, Mrs. Crawford would have lost her ability to walk. The assistant medical examiner testified he could not say how long Mrs. Crawford would have lived after sustaining such an injury and that he "might expect [based on] anecdot[al evidence] that it might be minutes" but that it was possible she lived a "shorter" amount of time and also possible that she "survived an hour."

The motel's clerk testified at trial that appellant had driven into the parking lot of the Charlottesville Quality Inn at approximately 11:00 a.m. on November 19, 2004, and parked in the spot farthest from the front desk. He told the clerk that he had been driving all night and asked for a quiet room. He gave his name as Dale Crawford and paid with a $100 bill. He was driving Mrs. Crawford's car, which other evidence established actually belonged to her father.

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