COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge McClanahan and Senior Judge Clements
Argued at Richmond, Virginia
RONTEL TAYLOR
MEMORANDUM OPINION * BY
v. Record No. 1259-10-2 JUDGE JEAN HARRISON CLEMENTS
MAY 31, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James F. D’Alton, Jr., Judge
David C. Fratarcangelo (Eliades and Eliades, P.C., on brief), for
appellant.
Josephine F. Whalen, Assistant Attorney General II (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Rontel Taylor, appellant, appeals his convictions of second-degree murder and use of a
firearm in the commission of murder. On appeal, he argues the trial court erred by denying his
attempt to elicit testimony from a detective concerning the course of his investigation. Because
appellant fails to show the trial court committed reversible error, we affirm the convictions.
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
BACKGROUND
Appellant was charged with murdering an individual in the parking lot of the Hopewell
Veterans of Foreign Wars (VFW) building. Detective Richard Hartman investigated the murder.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Appellant called Detective Hartman as a defense witness. Appellant asked Detective Hartman,
“Not getting into anything that anyone specifically told you in your investigations, during the
course of your investigations, did you have occasion to come across the name of an individual
named Frog who had been identified as being at the VFW?” The prosecutor objected to the
question on the ground of hearsay. Appellant stated, “Judge, it’s not introduced for the truth of
the matter.”
The following exchange took place:
[Appellant]: It’s introduced to determine what next course he took
in his investigation.
[Trial Court]: Tell me why it’s not hearsay.
[Appellant]: Because, Judge, I’m not introducing it for the truth of
the matter. I’m trying to find what he did next in his investigation.
[Trial Court]: I don’t know. Then that’s a relevance issue and I
would sustain the objection.
[Appellant]: So the objection is sustained, Judge?
[Trial Court]: That’s correct.
[Appellant]: Okay.
Appellant then asked Detective Hartman whether he had come across any suspects, other
than appellant, in the course of his investigation. Detective Hartman responded, “No.”
Appellant started to ask another question to Detective Hartman regarding whether he had
listened to any 911 telephone calls. Before the question was complete, the prosecutor objected,
stating, “Asked and answered and it’s hearsay.”
The trial court then excused the jury and asked appellant what he was proposing to ask
the witness. Appellant replied that he was asking the detective whether he had reviewed any 911
calls that led him to investigate other suspects. The trial court explained that in order to pursue
that line of questioning, appellant had to “ask for specific evidence presented to this [c]ourt of
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another possible person.” The trial court also asked appellant if he had any such evidence.
Appellant replied that he did not, other than testimony from Detective Hartman that was given at
a previous trial. The trial court asked appellant to proffer the prior trial testimony and the
prosecutor stated, “I’ll proffer [it] myself. . . . And it’s basically . . . did somebody tell you that
Elmo did it . . .?” The trial court then stated, “Well, there’s clear case law that that’s not
admissible, unless you have evidence to refute and support another witness or another alleged
defendant, then you’ve got to have that evidence before you go down that road.” Appellant
replied, “Very well, Judge. I’ll move on.” The trial court then stated, “All right. Then the
objection is sustained.”
ANALYSIS
On appeal, appellant argues the trial court erred when it denied his attempt to elicit
testimony from Detective Hartman concerning the course of his investigation. In his opening
brief, appellant cites Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960),
for the proposition that the hearsay rule does not operate to exclude evidence offered to explain
or throw light on the conduct of the person to whom it was made. Appellant argues he properly
limited his questioning of Detective Hartman within the parameters set forth by Fuller. He
contends he did not offer the evidence for the truth of the matter, but to find out what the
detective did in the course of his investigation. In his opening brief, appellant makes no
argument about the relevance of this evidence, arguing only that the evidence was admissible
because it was not hearsay.
The record shows, however, that the trial court ultimately excluded the evidence, not
because it was inadmissible hearsay, but because of the trial court’s determination that it was not
relevant. Specifically, as set forth in the quoted exchange recited above, when appellant asked
the detective about an individual named Frog and appellant argued that he was trying to find out
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what the detective did next in his investigation, the trial court ruled that this evidence was
irrelevant. In addition, when appellant asked Detective Hartman about the 911 calls and whether
he had developed any suspects other than appellant, the trial court ruled that this evidence was
inadmissible unless appellant showed he had specific evidence that another person committed the
crimes (which he did not do). 1
Even if we assume arguendo that the disputed evidence did not constitute hearsay, as
appellant contends on appeal, that obviously would not, ipso facto, render the evidence
admissible. “‘It is a fundamental principle of jurisprudence that evidence which is not relevant is
not admissible.’” McMillan v. Commonwealth, 277 Va. 11, 22, 671 S.E.2d 396, 401 (2009)
(quoting Davis v. Marshall Homes, 265 Va. 159, 166, 576 S.E.2d 504, 507 (2003)). See
generally Charles E. Friend, The Law of Evidence in Virginia § 11-2, at 433-38 (6th ed. 2003).
The trial court found the evidence was not relevant and, upon that basis, denied its admission.
This was, therefore, the dispositive ruling as to the admissibility of the disputed evidence. Yet,
appellant makes no argument in this appeal directly challenging the merits of this ruling, i.e., an
argument based on principles of relevancy. Appellant has thus failed “to shoulder [his] burden
of showing that the trial court’s decision ‘constituted reversible error.’” Campbell v.
Commonwealth, 39 Va. App. 180, 186, 571 S.E.2d 906, 909 (2002) (quoting McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc)). 2
1
As Professor Friend explains, evidence that a crime was committed by someone other
than the accused “must point directly to guilt of a third party; evidence that another person is
suspected of the crime or even that another person has been indicted for it is inadmissible. Thus,
evidence that merely suggests that a third party may have committed the crime is inadmissible.”
Charles E. Friend, The Law of Evidence in Virginia § 12-12, at 470 (6th ed. 2003) (footnotes
omitted).
2
Appellant also contends the trial court “effectively” denied him the opportunity to make
his own proffer of the evidence. However, appellant failed to make this argument to the trial
court. Accordingly, Rule 5A:18 bars our consideration of this argument on appeal and the record
does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
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Accordingly, we affirm appellant’s convictions.
Affirmed.
Moreover, our review of the record does not show the trial court denied appellant the opportunity
to make a proffer. Rather, the prosecutor made the proffer and appellant did not object to this
proffer, ask to supplement it, or ask to make his own additional proffer. Appellant acquiesced to
the proffer as made by the prosecutor. Therefore, appellant’s argument is without merit.
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