Smith v. Commonwealth

1

JOSEPH EUGENE SMITH v. COMMONWEALTH OF VIRGINIA

No. 0680-21-2

Court of Appeals of Virginia

May 17, 2022

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Beverly W. Snukals Judge

Samantha Offutt Thames, Senior Assistant Public Defender, for appellant.

Tanner M. Russo, Assistant Attorney General (Jason S. Miyares Attorney General; Matthew P. Dullaghan, Senior Assistant Attorney General, on brief), for appellee.

Present: Judges Huff, Athey and Fulton Argued by videoconference

MEMORANDUM OPINION ^[*]

CLIFFORD L. ATHEY, JR. JUDGE

Joseph Eugene Smith ("Smith") appeals his convictions and related sentences on two counts of rape of a child under thirteen and one count of object sexual penetration of a child under thirteen. He was tried by a jury in the Circuit Court of the City of Richmond ("trial court"). On appeal, Smith contends that the trial court erred by (1) denying him funds for experts, (2) excluding certain expert testimony, (3) denying his motion to dismiss for outrageous governmental misconduct, and (4) upholding his mandatory minimum life sentences as constitutional. For the following reasons, we reverse and remand.

I. Background

In early 2019, Smith was charged with repeatedly raping and sexually penetrating his former girlfriend's daughter over a four-year period. After initially denying that he committed the crimes, he confessed during an interrogation by law enforcement later in 2019. Following his confession, he was arrested, indicted, and eventually convicted by a jury on two counts of rape of a child under thirteen and one count of object sexual penetration of a child under thirteen. He was also acquitted on two of the counts of rape of a child under thirteen. He received a mandatory minimum life sentence on each of his three convictions.

A. Expert Funds & Testimony

The only evidence of the alleged crimes was the victim's accusation and Smith's confession. Smith sought to challenge the credibility of his confession by showing that he was susceptible to the interrogation techniques law enforcement used in the 2019 interrogation. On November 25, 2019, Smith, an indigent defendant, filed a motion requesting $2, 500 for "an expert in [the] coercive nature of custodial interrogations and false confessions." The court granted that motion.

On January 30, 2020, Smith filed two additional motions for expert funds. In the first, he asked for $4, 000 to secure the interrogation expert's testimony at trial concerning the Reid Technique and its effect on the reliability of his confession made as a result of that technique being employed by law enforcement. In the second motion, Smith asked for $10, 000 for an expert to evaluate Smith's cognitive abilities and further to testify about Smith's heightened susceptibility to the interrogation techniques used to obtain his confession.^[1] The trial court denied both motions for funds on February 12, 2020, saying that the video recording of the interrogation meant that "the jury's going to see the actual tactics used by the police." The trial court also ruled that the theoretical content of the Reid Technique was irrelevant before ruling that, despite indications that Smith had some degree of cognitive impairment, the defense had not "met its burden of showing a particularized need for" funds for the psychological expert.

After first filing and then abandoning a motion for an ex parte hearing on expert funds, ^[2]Smith filed a renewed motion for $7, 000 to retain the psychological expert. The renewed motion was based on proffered evidence indicating that Smith may be suffering from HIV-Associated Neurocognitive Disorder ("HAND").^[3] The Commonwealth opposed the renewed motion, and the trial court denied it on April 17, 2020. However, the trial court indicated that it had not "shut the door completely," and further opined that an indication from the proposed expert of exactly what it would take to confirm or rule out a diagnosis of HAND might justify granting enough funds to evaluate Smith for HAND. Finally, the trial court stated that if Smith were diagnosed with HAND, it would consider a future motion for additional funds for trial preparation and expert psychological testimony.

In response, Smith immediately filed a motion requesting $3, 500 to have Smith evaluated for HAND. The newly filed motion proffered that Dr. Scott Bender from the University of Virginia Department of Psychiatry and Neurobehavioral Sciences had agreed to conduct a neuropsychological evaluation of Smith in jail. The Commonwealth opposed the motion and filed its own motion in limine seeking to exclude all the expert testimony Smith hoped to present at trial. On May 7, 2020, the trial court granted funds for the police interrogation expert sua sponte but denied the funds for the neuropsychological evaluation for HAND.

In October of 2020, during the hearing on the Commonwealth's motion in limine to exclude all expert testimony, the Commonwealth conceded that "the Reid Technique . . . is outside the common juror's knowledge." However, the Commonwealth still maintained that the jury could understand how the components of the Reid Technique were used in the interrogation of Smith and the effect the technique would likely have on a person like him. The Commonwealth also argued that expert testimony on the Reid Technique should be excluded because it would be duplicative of testimony that could be elicited from the interrogator on cross-examination. Finally, the Commonwealth argued that the proposed police interrogation expert was not qualified to give expert testimony because his knowledge was based solely on watching interrogations and reading the literature on false confessions. Following the hearing, the trial court granted the Commonwealth's motion to exclude the proposed police interrogation expert's testimony.

On November 5, 2020, Smith filed yet another motion seeking expert funds to secure an expert to testify generally on the psychological factors which make a person susceptible to interrogation techniques. This time, Smith requested $7, 000 but asked for at least $1, 050 "to secure Dr. Aaron's presence at a future hearing to determine the admissibility of his testimony." Following a hearing on November 13, 2020, the trial court reviewed all the issues of funding and admissibility of expert evidence. It reiterated its belief that the average juror can readily understand how the interrogation techniques used during the interrogation of Smith would affect the subject of an interrogation, as well as its belief that cross-examination of the interrogator could elicit an adequate explanation of the Reid Technique. The trial court did grant $2, 000 to bring Dr. Aaron, a trained psychologist, to Richmond for a pretrial hearing so that the court could determine whether this proposed expert could provide any admissible testimony. The trial court also indicated that it would consider allowing testimony laying out all or some factors that psychologists believe lead to false confessions only if the defense could offer additional testimony tying each of the factors to Smith. Smith never secured a hearing date and never tried to bring Dr. Aaron to Richmond to proffer his testimony.

B. Attorney-Client Privilege

Smith was confined in the Richmond City Jail ("jail") from the time he was arrested until the trial. The jail where he was confined stopped public visitation as a result of the COVID-19 pandemic in late March or early April of 2020. The jail only permitted attorneys and law enforcement officers to visit prisoners. Inmates were only permitted to consult with their attorneys by phone, through a glass barrier, or with a video call system that placed the attorney and the inmate in separate rooms in the jail. The video system's software automatically recorded all of these audio and video calls, but the deputies could change a setting to indicate the visit was professional and thereby prevent the video call from being recorded. Jail officials advised the Richmond Public Defender's Office, which represented Smith below from the time he was arrested, that no attorney visits were being recorded.

In October of 2020, Smith's attorneys received discovery from the Commonwealth that included a disc containing recordings of Smith's phone calls and video visits, including videos of two meetings with Smith's attorneys. One video recording was from late March of 2020 and the other from early April of 2020. Both video recordings were of privileged trial strategy meetings. In addition, in response to a request from the lead investigator in Smith's case for all of Smith's calls within a certain time frame, an official at the jail had burned the two video recordings and many recordings of non-privileged phone calls to a disc and gave that disc to the lead investigator in Smith's case. The investigator, in turn, gave a copy to the Commonwealth. Although several police recruits listened to some of the phone calls for training purposes, no investigator, police officer, or prosecutor listened to or watched the video recordings of the trial strategy meetings.

In late 2020, based on the police having recorded the two trial strategy meetings, Smith moved to dismiss the indictments or in the alternative, exclude at trial all recordings of Smith's communications from the jail. The motion was based on the government's alleged violation of Smith's attorney-client privilege and his Sixth Amendment right to counsel. Following a hearing on the motion to dismiss, the trial court found that the government's conduct might have been negligent or even grossly negligent, but not purposeful, and therefore denied the motion to dismiss and ruled that all privileged communications were inadmissible at trial. The trial court...