COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Kelsey Argued at Chesapeake, Virginia
MICHAEL SHAYNE BROWN MEMORANDUM OPINION * BY v. Record No. 0178-07-1 JUDGE D. ARTHUR KELSEY MARCH 11, 2008 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge
Daniel P. Goode (Office of the Public Defender, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
A jury convicted Michael Shayne Brown of rape, object sexual penetration, two counts of
forcible sodomy, and statutory burglary. Prior to trial, Brown filed a motion in limine to exclude
the report of the sexual assault nurse examiner (SANE) who performed a medical examination of
the victim immediately after the assault. The trial court granted the motion and excluded the
SANE report as violative of Brown’s Sixth Amendment rights as recognized in Crawford v.
Washington, 541 U.S. 36 (2004). On interlocutory appeal, we rejected the trial court’s Crawford
analysis and reversed the trial court’s order excluding the SANE report. See Commonwealth v.
Brown, No. 3082-05-1, 2006 Va. App. LEXIS 152 (April 20, 2006) (unpublished) (referred to
passim as Brown I).
Upon remand, the trial court redacted any statements from the victim and opinions from
the nurse recounted in the SANE report and rescinded its in limine order in compliance with our
mandate. The case proceeded to trial. The victim testified that a stranger broke into her
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. apartment, held a knife to her throat, and forcibly raped, sodomized, and penetrated her. While
doing so, the perpetrator wore latex gloves. After the assault, the victim called the police and
submitted to a SANE examination. The SANE nurse examined the victim, took photographs
revealing recent trauma to her vagina and mouth, and provided a factual report of her
observations. The examination and report confirmed the victim’s claim of being forcibly raped
and sodomized. The nurse also collected several swabs from the victim’s body. The SANE
nurse who performed the examination, however, died in an automobile accident before trial.
At trial, the victim identified Brown as the man who raped and sodomized her. An expert
compared the DNA found on the swabs collected from the victim’s body with Brown’s DNA and
testified that the statistical probability of the rapist being someone other than Brown was one in
six billion. The detectives who arrested Brown stated that he had latex gloves in his vehicle.
The supervisor of the deceased SANE nurse testified at trial. Qualified as an expert, the SANE
nurse supervisor reviewed the photographs taken of the victim and offered her independent
opinion that these photographs revealed trauma to the vagina and mouth consistent with the
victim’s account of the assault. During her testimony, consistent with our opinion in Brown I,
the trial court admitted the original SANE nurse’s report reaching the same conclusions.
Brown presented no evidence in his defense. In closing argument, Brown’s counsel
conceded that there was “profound” evidence that the victim suffered from a sexual assault.
Even so, counsel argued, the Commonwealth was prosecuting the wrong man. The DNA
evidence, he contended, should be discounted due to alleged errors in sampling and testing. The
victim’s in-court identification should be dismissed, he argued, because victims always identify
the trial defendant as the perpetrator. The latex gloves, counsel asserted, could have belonged to
someone else. Rejecting these arguments, the jury found Brown guilty of all charges and
sentenced him to four life terms plus twenty years and a fine of $200,000.
-2- On appeal, Brown raises only one issue: “Whether the sexual assault nurse report was a
violation of the Sixth Amendment under Crawford v. Washington, 541 U.S. 36 (2004).”
Appellant’s Br. at 3. He asks that we reconsider our holding in Brown I rejecting exactly this
argument. While we have the authority to reconsider an interlocutory appellate ruling, see Code
§ 19.2-409, this case presents no reason to reconsider, much less reverse, our decision in Brown
I. Since then, a full trial has taken place that renders largely academic our views on the
reasoning of Brown I. See generally Satchell v. Commonwealth, 20 Va. App. 641, 647-48, 460
S.E.2d 253, 256 (1995) (en banc) (holding that, in an appeal of a conviction following an
interlocutory appeal, “we must consider the additional evidence adduced at trial”).
As we recently emphasized, it is “the duty of a reviewing court to consider the trial
record as a whole and to ignore errors that are harmless lest they retreat from their responsibility,
becoming instead impregnable citadels of technicality.” Kirby v. Commonwealth, 50 Va. App.
691, 699, 653 S.E.2d 600, 604 (2007) (citation and internal quotation marks omitted). Harmless
error review stems from the “imperative demands of common sense,” Oliver v. Commonwealth,
151 Va. 533, 541, 145 S.E. 307, 309 (1928), and consequently has been “deeply embedded in
our jurisprudence,” Gilland v. Commonwealth, 184 Va. 223, 235, 35 S.E.2d 130, 134 (1945). It
necessarily follows that “harmless-error review [is] required in all cases.” Kirby, 50 Va. App. at
699, 653 S.E.2d at 604 (emphasis in original and citations omitted).
Brown’s invocation of an alleged Crawford violation does not shield this case from
harmless error review. “It is well established that violations of the Confrontation Clause, if
preserved for appellate review, are subject to harmless error review, . . . and Crawford does not
suggest otherwise.” Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006)
(en banc) (citation omitted). To be harmless, the reviewing court “must be able to declare a
belief that it was harmless beyond a reasonable doubt.” Id. at 66, 628 S.E.2d at 78 (citation
-3- omitted). We decide whether the admission of evidence, if erroneous, “was sufficiently
prejudicial to require reversal on the basis of our own reading of the record and on what seems to
us to have been the probable impact on the fact finder.” Id. (citation omitted).
For several reasons, we can say with confidence that the admission of the SANE report,
even if error, was harmless error. To begin with, the opinion testimony of the SANE nurse
supervisor came to exactly the same conclusions as the written report. The SANE nurse
supervisor appeared at trial, testified based upon the photos of the victim, and subjected her own
opinion testimony to cross-examination. See Anderson v. Commonwealth, 48 Va. App. 704, 716
n.5, 634 S.E.2d 372, 377 n.5 (2006) (pointing out that Crawford does not apply to a witness,
cross-examined at trial, who relies upon the out-of-court conduct of others), aff’d, 274 Va. 469,
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Kelsey Argued at Chesapeake, Virginia
MICHAEL SHAYNE BROWN MEMORANDUM OPINION * BY v. Record No. 0178-07-1 JUDGE D. ARTHUR KELSEY MARCH 11, 2008 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge
Daniel P. Goode (Office of the Public Defender, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
A jury convicted Michael Shayne Brown of rape, object sexual penetration, two counts of
forcible sodomy, and statutory burglary. Prior to trial, Brown filed a motion in limine to exclude
the report of the sexual assault nurse examiner (SANE) who performed a medical examination of
the victim immediately after the assault. The trial court granted the motion and excluded the
SANE report as violative of Brown’s Sixth Amendment rights as recognized in Crawford v.
Washington, 541 U.S. 36 (2004). On interlocutory appeal, we rejected the trial court’s Crawford
analysis and reversed the trial court’s order excluding the SANE report. See Commonwealth v.
Brown, No. 3082-05-1, 2006 Va. App. LEXIS 152 (April 20, 2006) (unpublished) (referred to
passim as Brown I).
Upon remand, the trial court redacted any statements from the victim and opinions from
the nurse recounted in the SANE report and rescinded its in limine order in compliance with our
mandate. The case proceeded to trial. The victim testified that a stranger broke into her
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. apartment, held a knife to her throat, and forcibly raped, sodomized, and penetrated her. While
doing so, the perpetrator wore latex gloves. After the assault, the victim called the police and
submitted to a SANE examination. The SANE nurse examined the victim, took photographs
revealing recent trauma to her vagina and mouth, and provided a factual report of her
observations. The examination and report confirmed the victim’s claim of being forcibly raped
and sodomized. The nurse also collected several swabs from the victim’s body. The SANE
nurse who performed the examination, however, died in an automobile accident before trial.
At trial, the victim identified Brown as the man who raped and sodomized her. An expert
compared the DNA found on the swabs collected from the victim’s body with Brown’s DNA and
testified that the statistical probability of the rapist being someone other than Brown was one in
six billion. The detectives who arrested Brown stated that he had latex gloves in his vehicle.
The supervisor of the deceased SANE nurse testified at trial. Qualified as an expert, the SANE
nurse supervisor reviewed the photographs taken of the victim and offered her independent
opinion that these photographs revealed trauma to the vagina and mouth consistent with the
victim’s account of the assault. During her testimony, consistent with our opinion in Brown I,
the trial court admitted the original SANE nurse’s report reaching the same conclusions.
Brown presented no evidence in his defense. In closing argument, Brown’s counsel
conceded that there was “profound” evidence that the victim suffered from a sexual assault.
Even so, counsel argued, the Commonwealth was prosecuting the wrong man. The DNA
evidence, he contended, should be discounted due to alleged errors in sampling and testing. The
victim’s in-court identification should be dismissed, he argued, because victims always identify
the trial defendant as the perpetrator. The latex gloves, counsel asserted, could have belonged to
someone else. Rejecting these arguments, the jury found Brown guilty of all charges and
sentenced him to four life terms plus twenty years and a fine of $200,000.
-2- On appeal, Brown raises only one issue: “Whether the sexual assault nurse report was a
violation of the Sixth Amendment under Crawford v. Washington, 541 U.S. 36 (2004).”
Appellant’s Br. at 3. He asks that we reconsider our holding in Brown I rejecting exactly this
argument. While we have the authority to reconsider an interlocutory appellate ruling, see Code
§ 19.2-409, this case presents no reason to reconsider, much less reverse, our decision in Brown
I. Since then, a full trial has taken place that renders largely academic our views on the
reasoning of Brown I. See generally Satchell v. Commonwealth, 20 Va. App. 641, 647-48, 460
S.E.2d 253, 256 (1995) (en banc) (holding that, in an appeal of a conviction following an
interlocutory appeal, “we must consider the additional evidence adduced at trial”).
As we recently emphasized, it is “the duty of a reviewing court to consider the trial
record as a whole and to ignore errors that are harmless lest they retreat from their responsibility,
becoming instead impregnable citadels of technicality.” Kirby v. Commonwealth, 50 Va. App.
691, 699, 653 S.E.2d 600, 604 (2007) (citation and internal quotation marks omitted). Harmless
error review stems from the “imperative demands of common sense,” Oliver v. Commonwealth,
151 Va. 533, 541, 145 S.E. 307, 309 (1928), and consequently has been “deeply embedded in
our jurisprudence,” Gilland v. Commonwealth, 184 Va. 223, 235, 35 S.E.2d 130, 134 (1945). It
necessarily follows that “harmless-error review [is] required in all cases.” Kirby, 50 Va. App. at
699, 653 S.E.2d at 604 (emphasis in original and citations omitted).
Brown’s invocation of an alleged Crawford violation does not shield this case from
harmless error review. “It is well established that violations of the Confrontation Clause, if
preserved for appellate review, are subject to harmless error review, . . . and Crawford does not
suggest otherwise.” Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006)
(en banc) (citation omitted). To be harmless, the reviewing court “must be able to declare a
belief that it was harmless beyond a reasonable doubt.” Id. at 66, 628 S.E.2d at 78 (citation
-3- omitted). We decide whether the admission of evidence, if erroneous, “was sufficiently
prejudicial to require reversal on the basis of our own reading of the record and on what seems to
us to have been the probable impact on the fact finder.” Id. (citation omitted).
For several reasons, we can say with confidence that the admission of the SANE report,
even if error, was harmless error. To begin with, the opinion testimony of the SANE nurse
supervisor came to exactly the same conclusions as the written report. The SANE nurse
supervisor appeared at trial, testified based upon the photos of the victim, and subjected her own
opinion testimony to cross-examination. See Anderson v. Commonwealth, 48 Va. App. 704, 716
n.5, 634 S.E.2d 372, 377 n.5 (2006) (pointing out that Crawford does not apply to a witness,
cross-examined at trial, who relies upon the out-of-court conduct of others), aff’d, 274 Va. 469,
650 S.E.2d 702 (2007). The testimony of the SANE nurse supervisor introduced into evidence
the identical point made in the written SANE report. Admission of the former, therefore, renders
harmless any error in the admission of the latter. 1
More important, the point of the SANE report was not to prove that Brown was the rapist
but that the victim was raped — a fact wholly uncontested by Brown at trial. Brown’s only
defense was that he was not the perpetrator. The DNA evidence, not the SANE report, addressed
that issue by placing the odds of someone other than Brown committing the crime at one in six
billion. Add to that the victim’s in-court identification of Brown and the issue is placed beyond
reasonable dispute.
1 See Dearing v. Commonwealth, 260 Va. 671, 674, 536 S.E.2d 903, 904 (2000) (finding a violation of the Confrontation Clause to be harmless where the “testimony was merely cumulative of the other evidence adduced by the Commonwealth”); Greenway v. Commonwealth, 254 Va. 147, 154, 487 S.E.2d 224, 228 (1997) (“Improper admission of evidence does not create reversible error when it is merely cumulative of other competent evidence properly admitted.” (citation omitted)); McCary v. Commonwealth, 36 Va. App. 27, 40 n.3, 548 S.E.2d 239, 245 n.3 (2001) (“An error may also be harmless where erroneously admitted evidence is merely cumulative of other, properly admitted evidence.” (citations omitted)).
-4- In sum, we decline to reconsider our holding in Brown I because the evidence at trial
demonstrates beyond a reasonable doubt that even if the admission of the SANE report were
error, it should be deemed harmless. For this reason, we affirm Brown’s convictions for rape,
object sexual penetration, two counts of forcible sodomy, and statutory burglary.
Affirmed.
-5-