Present: All the Justices
LUIS AYALA, ADMINISTRATOR
OF THE ESTATE OF
JOSE MEDARDO AYALA, DECEASED
v. Record No. 071451 OPINION BY JUSTICE DONALD W. LEMONS
June 6, 2008
AGGRESSIVE TOWING AND
TRANSPORT, INC., ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
In this appeal, we consider whether the trial court erred
by receiving into evidence in a civil action, records of the
guilty pleas of a nonparty and an order of conviction for
involuntary manslaughter from a prior criminal action.
I. FACTS AND PROCEEDINGS BELOW
On April 26, 2004, Martir Udiel Reyes (“Reyes”) was
driving a Honda Accord sedan on Interstate Route 95 North in
Fairfax County, Virginia. The car collided with a tow truck
operated by Nye Ranae Clemons (“Clemons”), and owned by
Aggressive Towing & Transport, Inc. (“Aggressive Towing”).
Jose Medardo Ayala, who was seated in the right rear passenger
seat of the Honda was killed instantly. Reyes’ blood alcohol
level was .13 at the time of the collision. Reyes pled guilty
to involuntary manslaughter in connection with the death of
Jose Ayala, and was convicted of that offense in the Circuit
Court of Fairfax County. Additionally, Clemons was charged
with driving while intoxicated, second offense. His blood
alcohol level was .20 at the time of the collision. Clemons
pled guilty to driving while intoxicated, first offense and
was convicted.
The Administrator of the Estate of Jose Ayala, Luis Ayala
(“Ayala”), filed an action for wrongful death against Clemons,
and Clemons’ employer Aggressive Towing. Trial was scheduled
for April 10, 2007. On April 6, 2007, Clemons and Aggressive
Towing requested an order requiring the transport of Reyes
from the penitentiary to appear as a witness at trial. The
trial court denied the motion because Clemons and Aggressive
Towing failed to comply with the scheduling order in the case
and failed to timely supplement discovery.
At trial, Ayala contended that the collision occurred as
Clemons was merging into the far right lane from the shoulder.
However, Clemons maintained that the collision occurred while
his truck was stopped on the shoulder. To support their
theory that the collision was solely a result of Reyes’
negligence, Clemons and Aggressive Towing sought to introduce
Reyes’ pleas and an order of conviction for involuntary
manslaughter. Ayala objected, arguing that the pleas and
conviction order were inadmissible hearsay, were more
prejudicial than probative, and that the declarant had to be
unavailable in order for the evidence to be admissible as an
admission against penal interest. Further, Ayala argued that
2
because Clemons and Aggressive Towing procured the
unavailability of Reyes, the pleas and conviction order were
not admissible. Additionally, Ayala maintained that the pleas
and order of conviction were inadmissible under the “general
rule that a judgment of conviction in a criminal prosecution
does not establish in a subsequent civil action the truth of
the facts on which it was rendered, and such judgment of
conviction is not admissible in evidence.” Ayala’s objections
were overruled and the trial court held that the pleas and
conviction order were admissible. The jury rendered its
verdict in favor of Clemons and Aggressive Towing.
We granted Ayala this appeal on one assignment of error:
“The trial court erred in admitting the plea [sic] and
conviction for manslaughter of the nonparty driver of the
vehicle in which Plaintiff’s decedent was a passenger inasmuch
as Defendants procured the declarant’s unavailability at trial
through neglect or willful inaction, and as such conviction
was inadmissible under the well-settled precedent of this
Court.”
II. ANALYSIS
A. Standard of Review
Our review of the trial court’s decision to admit the
judgment of conviction involves a question of law which we
review de novo. Alston v. Commonwealth, 274 Va. 759, 764, 652
3
S.E.2d 456, 459 (2007). The standard of review of a trial
court’s ruling regarding whether the required foundational
showing of the “unavailability” of an out-of-court declarant
to provide live testimony has been made by the proponent
offering hearsay statements from that declarant is the abuse
of discretion test. Burton v. Oldfield, 195 Va. 544, 550, 79
S.E.2d 660, 665 (1954).
As an initial matter, we note that the parties to this
appeal are proceeding based upon a written statement of facts
in lieu of a transcript pursuant to Rule 5:11(c). While this
manner of providing a record is permissible under our Rules,
it often creates difficulty for the Court and the litigants on
appeal. For example, in this case, the record does not
include the guilty pleas in question. The record does contain
the conviction order in question. Clemons and Aggressive
Towing seek to improperly supplement the record at this stage
of the proceeding by attaching copies of the guilty pleas to
their brief. They further maintain that the guilty pleas were
admitted into evidence. Ayala responds in a reply brief that
the guilty pleas were not admitted into evidence. We will
review the matter based upon the written statement of facts
signed by the trial judge which concludes the following: “The
Trial Court overruled Plaintiff’s objections and allowed
4
Defendants to introduce Mr. Reyes’ plea [sic] and conviction
of manslaughter.”
B. Use of the Judgment of Conviction
Neither res judicata nor the collateral estoppel doctrine
under Virginia law would permit any finding in the
Commonwealth’s criminal case against Reyes to be used against
a non-party, Ayala, in a later civil proceeding between other
private parties. First, Ayala was not a party in the criminal
case brought by the Commonwealth against Reyes, and therefore,
the mutuality of parties requirement for these doctrines is
not met. See Selected Risks Insurance Co. v. Dean, 233 Va.
260, 263-64, 355 S.E.2d 579, 581 (1987) (Commonwealth and
crime victim are not the same party for purposes of satisfying
the mutuality requirement). Second, “the general rule in
Virginia is that ‘a judgment of conviction or acquittal in a
criminal prosecution does not establish in a subsequent civil
action the truth of the facts on which it was rendered . . .
and such judgment of conviction or acquittal is not admissible
in evidence.’ ” Godbolt v. Brawley, 250 Va. 467, 470, 463
S.E.2d 657, 659 (1995) (quoting Smith v. New Dixie Lines,
Inc., 201 Va. 466, 472, 111 S.E.2d 434, 438 (1959)).
Consequently, the trial court erred in admitting the prior
judgment of conviction.
C. Reyes’ Guilty Plea
5
Reyes is not a party to the present proceedings. He was
incarcerated at the time of this trial of civil claims between
other persons. Therefore, the evidentiary use of his
admission of responsibility in the form of a guilty plea on
manslaughter charges is not governed by statute 1 or Rule, 2 but
by the hearsay exception doctrine governing declarations
against a non-party’s penal interest. Schmitt v.
Commonwealth, 262 Va. 127, 144, 547 S.E.2d 186, 198 (2001).
See Paden v. Commonwealth, 259 Va. 595, 597, 529 S.E.2d 792,
793 (2000). This exception to the hearsay rule allows out-of-
court statements that tend to incriminate a declarant to be
received in evidence upon a showing that the declaration is
reliable and that the declarant is presently unavailable.
Schmitt, 262 Va. at 144, 547 S.E.2d at 198; Ellison v.
Commonwealth, 219 Va. 404, 408, 247 S.E.2d 685, 688 (1978).
Prior decisions of this Court demonstrate that the proponent
of the evidentiary use of an out-of-court statement under this
1
Code § 8.01-418 provides, in pertinent part: “Whenever,
in any civil action, it is contended that any party thereto
pled guilty or nolo contendere . . . in a prosecution for a
criminal offense . . . which arose out of the same occurrence
upon which the civil action is based, evidence of said plea
. . . shall be admissible.” In this case, Reyes is not a
party to the civil action; consequently, the statute does not
apply.
2
Rule 3A:8 renders inadmissible certain withdrawn pleas
but does not address the use of pleas that have not been
withdrawn, or the use of pleas as evidence against a person
other than the defendant who enters the plea. See Rule
3A:8(c)(5).
6
hearsay exception is required to demonstrate the use of
reasonable diligence in seeking to obtain the declarant’s live
testimony. Wise Terminal Co. v. McCormick, 107 Va. 376, 378-
81, 58 S.E. 584, 585-86 (1907); see also Sapp v. Commonwealth,
263 Va. 415, 425, 559 S.E.2d 645, 650 (2002); Schmitt, 262 Va.
at 144, 547 S.E.2d at 198; Atkins v. Commonwealth, 257 Va.
160, 176, 510 S.E.2d 445, 455 (1999); Chandler v.
Commonwealth, 249 Va. 270, 279 n.1, 455 S.E.2d 219, 224 n.1
(1995); Ellison, 219 Va. at 408, 247 S.E.2d at 688.
In this case, defendants failed to use reasonable
diligence in seeking to obtain live testimony from Reyes. A
scheduling order was issued during the pretrial phases of the
present civil case setting a deadline for the designation of
all desired witnesses, but defendants failed to identify Reyes
as required by that scheduling order. Nor had defendants
timely supplemented their discovery disclosures. See Rule
4:1(e)(2) (“A party is under a duty promptly to amend and/or
supplement all . . . prior responses to [discovery requests]
if the party learns that any such response is in some material
respect incomplete or incorrect.”). Although the case had
been pending for one year, defendants moved for a
transportation order only four days before the scheduled
trial. The trial court denied that motion because defendants
had failed to designate Reyes as a witness as required by the
7
pretrial order and failed to supplement or amend relevant
discovery responses. No cross-error was assigned to that
ruling by the defendants. Consequently, we hold that
defendants waived their right to call for production of Reyes
as a live witness, and therefore failed to demonstrate
reasonable diligence in seeking the presence of the live
witness required as a prerequisite for evidentiary use of
Reyes’ prior guilty plea as a declaration against penal
interest at the trial. See Wise Terminal Co., 107 Va. at 378-
81, 58 S.E. at 585-86 (finding proponent’s efforts
insufficient to warrant use of witness’ testimony from prior
trial). It was therefore an abuse of discretion to admit the
prior guilty plea into evidence.
D. “Judicial Records”
Finally, Clemons and Aggressive Towing argue that the
plea and conviction order were admissible as “judicial
records.” Nothing in the statement of facts reveals any
argument presented to the trial court on this question. On
appeal, Clemons and Aggressive Towing raise the provisions of
Code § 8.01-389(A) in support of their argument. However, we
have no way of knowing whether the statute was the basis of
the argument in the trial court or whether the trial court
considered this particular statute in the context of our
decisions regarding admissibility of conviction orders or the
8
legislature’s particular provisions for guilty pleas under
Code § 8.01-418. Accordingly we are unable to consider this
question on appeal. Rule 5:25.
III. CONCLUSION
For the reasons stated, the judgment of the trial court
will be reversed and the matter will be remanded for a new
trial.
Reversed and remanded.
9