Hicks v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Petty and McCullough
Argued at Lexington, Virginia

THOMAS LEE HICKS
OPINION BY
v. Record No. 1431-11-4 JUDGE ROBERT J. HUMPHREYS
MAY 29, 2012
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
Jeffrey W. Parker, Judge

Lorie E. O’Donnell, Public Defender, for appellant.

Gregory W. Franklin, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.

Thomas Lee Hicks (“Hicks”) appeals his conviction in the Circuit Court of

Rappahannock County (“trial court”) where a jury found him guilty of attempted murder,

aggravated malicious wounding, robbery, and use of a firearm in the commission of a felony.

On appeal, Hicks argues (1) that the “trial court erred by ruling that statements of Clyde

Dellinger, the alleged victim, could come into evidence as an excited utterance exception to the

hearsay rule,” and (2) the “trial court erred in allowing witnesses to testify at trial regarding the

testimony of Clyde Dellinger that they heard at the Preliminary Hearing.” For the following

reasons, we affirm the trial court.

I. Background

This Court reviews the evidence in the light most favorable to the prevailing party in the

trial court. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003).

Therefore, we must “discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270

S.E.2d 755, 759 (1980). In this light, the evidence is as follows.

On June 10, 2010 at around 8:00 p.m., Clyde Dellinger (“Clyde”), was shot in the face

and robbed of the cash in his pocket while in the front yard of his house and shop. Daniel and

Paula Dellinger (“Daniel” and “Paula,” respectively), Clyde’s son and daughter-in-law, who

lived just behind Clyde on Scrabble Road, were driving home at about 8:00 p.m. on June 10th

when they noticed Clyde lying on his back in the yard. Daniel and Paula pulled into Clyde’s

driveway and rushed to check on Clyde. Daniel, who was unsure whether his father had been

shot or whether he was injured while working, ran up to Clyde and asked him what happened

and if he needed help. Clyde had been shot between his eyes at the bridge of his nose within the

last couple of minutes, and he was bleeding. Clyde, who was “very excited,” said, “‘He shot me,

Daniel, and he robbed me.’” Daniel testified, “I guess [Clyde] thought he was gonna not make

it, so he just gave information and all he could.” As he was lying on his back in a pool of blood,

Clyde told Daniel that Tom Thompson, or Thomason, shot and robbed him, but Clyde did not

provide any more details of the shooting itself. Investigators later determined that Hicks used the

name “Tom Thompson” as an alias. Daniel testified that Clyde made these statements

“spontaneously” rather than in response to sustained questioning. Clyde also inquired of his son

whether he would get some help and whether he could take him to the hospital.

While Daniel attended to Clyde, Paula ran into Clyde’s house, called 911, and then joined

Daniel and Clyde. Clyde remained conscious during the twelve to fifteen minutes they were

waiting for help to arrive. Paula testified that there “was an urgency in his voice, that he had to

tell us as much as he could, I believe, because he wasn’t sure if he was going to make it.” Clyde

had an automotive belt in his hand as he lay on the ground. Clyde said that he had sent “Tom” to

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the town of Culpeper to get the belt for him, and indicated that the belt was very important to

finding “Tom.”

Clyde testified at the August 3, 2010 preliminary hearing and identified Hicks as the man

who shot and robbed him. Before Hicks’ trial, Clyde died of causes unrelated to the gunshot

wound to his face. After Clyde’s death but prior to trial, the trial court granted the

Commonwealth’s motions to allow into evidence at trial (1) statements made by the victim who

is now deceased under the excited utterance exception to the rule against hearsay, and (2) the

preliminary hearing testimony of one who is now deceased.

At trial, the Commonwealth called Sheriff Connie Smith and Paula Dellinger to testify as

to Clyde’s preliminary hearing testimony. Sheriff Smith testified that she was present at the

preliminary hearing involving Hicks and she heard and saw Clyde testify. She identified where

Clyde and Hicks were seated at the respective counsel tables and recalled that Judge

Underwood 1 took the bench that day. She stated that Clyde was placed under oath. She testified

to Clyde’s appearance and clothing, and stated that Hicks sat beside his attorney with his head

down. Regarding Clyde’s testimony, Sheriff Smith said,

[Clyde] stated that he had given someone some money to go
somewhere in Culpeper to pick something up. [Clyde] stated that
– well, Mr. Luke [the Commonwealth’s Attorney] had asked him
first of all what had took place at his residence on the day in
question. He stated that he had given someone some money to go
somewhere in Culpeper to pick up something.

[Clyde] stated that he leaned over into the car and the person took
the gun out and shot him. He stated that he fell to the ground and,
He came around, went into my pockets, and took something.

Mr. Luke asked [Clyde] if the person that robbed and shot him was
in the courtroom that day. [Clyde] leaned forward, looked over at

1
Judge Underwood was acting as a substitute judge and is not a regular Rappahannock
general district judge.
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 the defense end of the table, took his left hand and pointed and
said, “That’s him. He looks a little different today, but that’s him.”

She affirmed that Clyde was pointing at Hicks.

Paula Dellinger also testified that Clyde was sworn in at the preliminary hearing and she

pointed to where he was sitting. She recalled that Tom Underwood was the judge that day and

that Hicks was present with his lawyer. Paula testified as to her recollection of Clyde’s

preliminary hearing testimony:

[Paula]: He told how he made the
acquaintance of this man. He came
by the garage. And I think he said a
couple weeks before the shooting
that the man came by the garage and
he started kind of hanging around.
He would show up and just hang out
for a little while.

He also told how – he gave details
about the day of the shooting, how
he had asked him to go to town and
purchase a belt, a mechanical type
belt.

* * * * * * *

He told how he was – how the
defendant was sitting in his car, and
he was on the driver’s side of the car,
and [Clyde] was standing at the
passenger door. He was kind of
leaning into the window and talking
to Tom.

He said that – he said that Tom was
fiddling with his wallet for a little
while on his leg. He had sat it on his
leg and he was seeming a little
fidgety with his wallet. And the last
thing that he remembered was that he
took his right hand and he reached
over to his left side, and the last
thing that [Clyde] saw was a flash.

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 And the last thing he remembered
after that was that Tom came over to
him and reached into his pocket and
took his money and then left very
quickly in his car.

* * * * * * *

[Commonwealth’s Attorney]: And after he gave that testimony, did
I ask [Clyde] to identify whether the
person that shot and robbed him was
in the courtroom?

[Paula]: Yes, I do remember that.

[Commonwealth’s Attorney]: And tell the jury what [Clyde] did.

[Paula]: The defendant was looking down,
and [Clyde] asked that they ask him
to look up, and he said that the man
that was there was the person who
shot him.

[Commonwealth’s Attorney]: Was that the defendant right here?

[Paula]: Yes, sir, it was.

The jury found Hicks guilty on all four charges against him and sentenced him to a total

of forty-eight years in the penitentiary. This appeal follows.

II. Analysis

A. Excited Utterance

Hicks first contends that the “trial court erred in admitting hearsay testimony concerning

statements made by Clyde Dellinger at the scene of the shooting.”

It is well established that “the admissibility of evidence is within the discretion of the trial

court” and an appellate court will not reject the decision of the trial court unless it finds an abuse

of discretion. Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010). A

“trial judge’s ruling will not be reversed simply because an appellate court disagrees. Only when

reasonable jurists could not differ can we say an abuse of discretion has occurred.” Thomas v.
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Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (2005) (internal quotation and

citation omitted). 2

“There is no fixed rule by which the question whether the statement is admissible as an

excited utterance can be decided. Resolution of the issue depends on the circumstances of each

case and ‘rests within the sound judicial discretion and judgment of the trial court.’” Clark v.

Commonwealth, 235 Va. 287, 292, 367 S.E.2d 483, 486 (1988) (quoting Huffman v.

Commonwealth, 168 Va. 668, 681, 190 S.E. 265, 271 (1937)).

“A statement comes within the excited utterance exception to the
hearsay rule and is admissible to prove the truth of the matter
stated, when the statement is spontaneous and impulsive, thus
guaranteeing its reliability. . . . The statement must be prompted by
a startling event and be made at such time and under such
circumstances as to preclude the presumption that it was made as
the result of deliberation. In addition, the declarant must have
firsthand knowledge of the startling event. The decision whether
the statement qualifies as an excited utterance lies within the
discretion of the trial court.” 3

Caison v. Commonwealth, 52 Va. App. 423, 431, 663 S.E.2d 553, 557 (2008) (quoting Esser v.

Commonwealth, 38 Va. App. 520, 525, 566 S.E.2d 876, 879 (2002)).

2
Hicks also argues under this assignment of error that “the admission of evidence in this
particular case was a violation of [his] constitutional right to confrontation,” and thus requires
reversal unless the error is harmless beyond a reasonable doubt. Hicks did not raise a
constitutional confrontation argument related to the excited utterances at the trial court or in his
petition for appeal. This Court will not address it for the first time on appeal. Rules 5A:12,
5A:18. An objection must be “both specific and timely – so that the trial judge would know the
particular point being made in time to do something about it.” Thomas, 44 Va. App. at 750, 607
S.E.2d at 742. The analysis for this assignment of error is thus confined to whether the victim’s
statements fall within the excited utterance exception to the hearsay rule.
3
Although not yet in effect, we note that the elements of the ”excited utterance”
exception to the evidentiary rule prohibiting the admission of hearsay testimony recited here
have been codified as Va. Rule of Evid. 2:803(2) (effective July 1, 2012), which excludes from
the hearsay rule “[a] spontaneous or impulsive statement prompted by a startling event or
condition and made by a declarant with firsthand knowledge at a time and under circumstances
negating deliberation.” Under this rule, such statements “are not excluded by the hearsay rule.
even though the declarant is available as a witness.” Va. Rule of Evid. 2:803 (effective July 1,
2012).
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 Hicks argues that Clyde’s statements beyond his immediate statement, “I’ve been shot,”

consisted of a narrative of the day’s events and was not an excited utterance. We disagree with

his contention. A trial court considers multiple circumstances “‘when determining whether the

declarant’s statement was prompted by a startling event, and not the product of premeditation,

reflection or design.’” Perry v. Commonwealth, 58 Va. App. 655, 669, 712 S.E.2d 765, 772

(2011) (quoting Braxton v. Commonwealth, 26 Va. App. 176, 184, 493 S.E.2d 688, 691 (1997)).

In Clark, the Virginia Supreme Court found that the trial court properly admitted the

victim’s declaration as an excited utterance after considering all of the circumstances. Clark, 235

Va. at 293, 367 S.E.2d at 486. After being shot twice in the chest from a close range, the victim

walked 492 feet into a store to seek help. The manager of the store asked the victim, “What

happened, were you in a fight, did somebody try to rob you? What is the matter Mac?” The

statement at issue was the victim’s reply: “‘The tall boy, the tall boy that used to work at

Weber’s.’ . . . ‘Tell Jerry’ and ‘call the police.’” Id. at 289, 367 S.E.2d at 484. The victim made

the statement between five and ten minutes after the shooting. Id. at 293, 367 S.E.2d at 486.

The Court considered that the victim “had been mortally wounded, he was suffering from the

trauma he was in or approaching a state of shock, and his emotional stability was tenuous at

most. The statement was not a mere narrative of a completed affair. Rather, it was part of the

instinctive reaction to a horrifying event.” Id. The Court determined that it was proper for the

trial judge to consider the victim’s physical condition and emotional stability along with the time

frame of the statement from the exciting event. Id. The Court noted that neither time nor

distance from the exciting event is conclusive. Id. at 292, 367 S.E.2d at 486. See also Doe v.

Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 385 (1984) (the lapse of time between the startling

event and the declaration offered in evidence is relevant in determining the spontaneity of the

statement, but not controlling).

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 Considering all the circumstances surrounding Clyde’s statements, we cannot say that the

trial court abused its discretion in admitting the statements as excited utterances. Clyde suffered

a gunshot wound between the eyes, a potentially mortal wound and an undoubtedly startling

event. Clyde’s statements to his son and daughter-in-law shortly after suffering the wound were

that he had been shot and robbed, that Tom Thompson was his assailant, and that Tom had

purchased the automotive belt for Clyde in Culpeper. The record establishes that these

statements were made, at most, a few minutes after he was shot. Clyde made all of the

statements at issue while he was physically incapacitated, emotionally distraught, and lying in a

pool of his own blood, and while at the same time asking for medical help. 4

The fact that Clyde’s statements followed Daniel’s general question of “What

happened?” and that he elaborated beyond merely stating “I’ve been shot,” does not diminish the

fact that his statements were made under the impulse of a startling event that had occurred a few

minutes before. 5 The fact that a declarant’s statements were made in response to a question

enters the excited utterance analysis for the purpose of determining whether the inquiry gave the

declarant an opportunity to deliberate, see Doe, 227 Va. at 472, 318 S.E.2d at 385, or whether the

question or questioner suggested or influenced a response and thereby corrupted the reliability of

the statement, see Martin v. Commonwealth, 4 Va. App. 438, 442, 358 S.E.2d 415, 418 (1987).

The fact that Daniel was trying to find out what took place does not establish that he was

4
We reiterate that the lapse of time is only one circumstance to consider when
determining whether the declarant’s statement was prompted by a startling event and not
premeditated. Braxton, 26 Va. App. at 184, 493 S.E.2d at 691-92. In Braxton, a child’s
statement was admissible as an excited utterance even though the record did not establish how
much time had passed between the murder of the child’s mother and the child’s statement. Id. at
184, 493 S.E.2d at 691.
5
As noted supra, the statement admissible as an excited utterance in Clark was made in
response to the questions “What happened, were you in a fight, did somebody try to rob you?
What is the matter Mac?” Clark, 235 Va. at 289, 367 S.E.2d at 484. Thus, in this case, Daniel’s
question of, “What happened?” within a minute or two of the shooting did not disqualify Clyde’s
statements from the excited utterance exception.
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influencing Clyde’s answers or prompting Clyde to make unreliable statements. Further, the fact

that Clyde was trying to provide as much information as he could does not bar his statements as

excited utterances. The record lacks any evidence that Clyde had an opportunity to deliberate

and fabricate statements regarding the incident or his assailant, or that his statements were the

product of influenced questioning. Clearly, Clyde was still under the influence of the startling

event as he lay on the ground waiting for the ambulance with a fresh gunshot wound to his face.

Daniel described his father as “very excited” and the statements as “spontaneous,” and Paula

testified that “there was an urgency in [Clyde’s] voice, that he had to tell us as much as he could,

I believe, because he wasn’t sure if he was going to make it.” Therefore, it was reasonable for

the trial court to conclude that Clyde made the statements while still under the influence of the

startling event and at a time and under such circumstances as to preclude the conclusion that they

were made as the result of deliberation. We thus affirm the trial court’s ruling admitting Clyde’s

statements under the excited utterance exception to the rule against hearsay.

B. Preliminary Hearing Testimony

Hicks also argues that the trial court erred in admitting witness testimony concerning

Clyde’s preliminary hearing testimony. “The admissibility of evidence is within the discretion of

the trial court, and we review its decisions only for abuse of discretion.” Dickens v.

Commonwealth, 52 Va. App. 412, 417, 663 S.E.2d 548, 550 (2008).

The Virginia Supreme Court has held that,

The preliminary hearing testimony of a witness who is absent at a
subsequent criminal trial may be admitted into evidence if the
following conditions are satisfied: (1) that the witness is presently
unavailable; (2) that the prior testimony of the witness was given
under oath (or in a form of affirmation that is legally sufficient);
(3) that the prior testimony was accurately recorded or that the
person who seeks to relate the testimony of the unavailable witness
can state the subject matter of the unavailable witness’s testimony
with clarity and in detail; and (4) that the party against whom the
prior testimony is offered was present, and represented by counsel,
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 at the preliminary hearing and was afforded the opportunity of
cross-examination when the witness testified at the preliminary
hearing.

Longshore v. Commonwealth, 260 Va. 3, 4, 530 S.E.2d 146, 146 (2000). 6

Of the four requirements provided in Longshore, Hicks only challenges the admission of

Clyde’s preliminary hearing testimony on the basis that Paula and Sheriff Smith did not recall

Clyde’s testimony with clarity and in detail. Virginia case law has not addressed the requisite

level of clarity and detail that the trial witness’ testimony must achieve. In this case, both Sheriff

Smith and Paula confirmed the most important facts -- that at the preliminary hearing, Clyde

Dellinger positively identified Thomas Lee Hicks as the man who shot him in the face and

robbed him. While Paula provided more detail than Sheriff Smith regarding Clyde’s testimony

at the preliminary hearing, both provided sufficient detail of Clyde’s identification of Hicks as

the perpetrator, 7 as well as additional details, which established their familiarity with what

transpired at the hearing. The trial court certainly did not abuse its discretion when it allowed

Sheriff Smith and Paula to testify at trial as to Clyde’s identification of Hicks at the preliminary

hearing as the man who shot and robbed him.

Finally, Hicks asserts under this assignment of error that he was denied a fair trial,

because he did not have the chance to confront his accuser in front of the jury at trial. When

dealing with an issue involving the Sixth Amendment right to confrontation, “[w]e review de

novo [an appellant’s] claim that his right to confrontation was violated.” Harper v.

Commonwealth, 54 Va. App. 21, 24, 675 S.E.2d 841, 843 (2009).

6
Hicks does not challenge the fact that the Supreme Court of Virginia’s Longshore
decision supplies the rule of decision. We also note for informational purposes that as of July 1,
2012, hearsay issues regarding the use of testimony will be governed by Va. Rule of Evid.
2:804(b)(1) (effective July 1, 2012) which codifies the holding of Longshore.
7
Hicks conceded at oral argument that the trial witnesses did not lack clarity and detail in
their testimony regarding Clyde’s identification of Hicks as the perpetrator at the preliminary
hearing.
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 The United States Supreme Court has held that the Confrontation Clause “permits

admission of ‘testimonial statements of witnesses absent from trial . . . only where the declarant

is unavailable, and only where the defendant has had a prior opportunity to cross-examine.’”

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2707 (2011) (quoting Crawford v. Washington,

541 U.S. 36, 59 (2004)). See also Schneider v. Commonwealth, 47 Va. App. 609, 613, 625

S.E.2d 688, 690 (2006) (“[O]ur law regarding the admissibility of preliminary hearing testimony

has always required unavailability and an opportunity for cross-examination and complies with

the new requirements of Crawford without alteration.”). Hicks does not contest that Clyde was

unavailable at trial due to his death, or that Hicks was present at the preliminary hearing with his

attorney and had the opportunity to cross-examine Clyde. 8 Hicks’ right to confront his accuser

was thus satisfied under Crawford and Bullcoming.

III. Conclusion

Because Clyde’s statements made immediately after he was shot and his preliminary

hearing testimony were properly admitted at trial under recognized exceptions to the general

evidentiary rule prohibiting hearsay and because Hicks had the opportunity to confront and

cross-examine Clyde at the preliminary hearing, thus satisfying Hicks’ Sixth Amendment right to

confront his accuser, we affirm the judgment of the trial court.

Affirmed.

8
At oral argument, counsel for Hicks acknowledged that Clyde was cross-examined at
the preliminary hearing.
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