Caison v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Clements, Kelsey and Senior Judge Annunziata
Argued at Alexandria, Virginia

DONALD LEE CAISON, JR.
OPINION BY
v. Record No. 1405-07-4 JUDGE JEAN HARRISON CLEMENTS
JULY 29, 2008
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gaylord L. Finch, Jr., Judge

Dawn M. Butorac, Deputy Public Defender, for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.

Donald Lee Caison, Jr., (appellant) was convicted in a jury trial of manslaughter, in

violation of Code § 18.2-35. On appeal, he contends the trial court erred in admitting into

evidence a recording of a 911 call and in finding the evidence sufficient to support his

conviction. Finding no error, we affirm the trial court’s judgment and appellant’s conviction.

I. BACKGROUND

“On appeal, we construe the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.” Zoretic v. Commonwealth,

13 Va. App. 241, 242, 409 S.E.2d 832, 833 (1991) (citing Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975)). Viewed by that standard, the evidence demonstrates

that around 2:00 a.m. on May 24, 2006, appellant met Katie McLachlan in front of her home at

1103 Clarke Street in Herndon, Virginia. In his pocket, appellant carried an unopened 40-ounce

beer bottle. As appellant and McLachlan walked toward her house, they encountered

McLachlan’s roommate, Maria Gann, and her boyfriend, William Green. After McLachlan
introduced appellant to Green, Green punched appellant in the nose. Appellant then fled, and

Green pursued him. McLachlan and Gann followed the two men. During the chase, appellant

dropped the 40-ounce beer bottle on the street. Moments later, Green caught up to appellant and

a struggle ensued between the men. At some point during the affray, appellant stabbed Green

with a knife. Appellant immediately fled from the scene.

After appellant fled, McLachlan and Gann carried Green, who appeared unconscious,

back to the front yard of their residence. Within minutes, McLachlan called 911 and spoke to an

operator employed by the Fairfax County Police. The dialogue between McLachlan and the 911

operator, in relevant part, transpired as follows:

911 OPERATOR: What’s the problem?

CALLER: I don’t know. My friend was hit in the stomach
with a beer bottle.

* * * * * * *

911 OPERATOR: Okay. How did it happen?

CALLER: I don’t know. I don’t know. He was here, then
one of my friends came and they just started fighting, and then he
hit him with a beer bottle.

911 OPERATOR: Okay. Ma’am. Ma’am, I cannot
understand a word that you’re saying. You need to settle down
and take the phone away from – like further away from your
mouth; it’s mumbled.
You said that he hit him with it?

CALLER: Yes.

911 OPERATOR: Okay. Is he bleeding?

CALLER: Yes.

911 OPERATOR: Is he conscious?

CALLER: No.

911 OPERATOR: Okay. Is he breathing?
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 CALLER: He’s breathing, yes.

* * * * * * *

911 OPERATOR: Okay. Where is the guy that cut him?

CALLER: He ran.

911 OPERATOR: Okay. What does he look like?

CALLER: A tall black male, about 6 foot, 6 foot 1.

911 OPERATOR: Does anybody know who he is?

CALLER: Yes. He’s Donald Lee Caison.

* * * * * * *

911 OPERATOR: Okay. All right. What’s he wearing?

CALLER: A black hoodie.

911 OPERATOR: Say that—

CALLER: A white tee-shirt.

911 OPERATOR: I’m sorry—a black hoodie?

CALLER: White tee-shirt.

911 OPERATOR: And a white tee-shirt?

CALLER: And black Dickies.

* * * * * * *

911 OPERATOR: Does he have any weapons on him still?

CALLER: No, I don’t know.

911 OPERATOR: And do you know which way he ran?

CALLER: He ran towards Herndon Parkway.

911 OPERATOR: How many minutes ago?

CALLER: About five minutes ago.
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 911 OPERATOR: Okay. All right. You’re—okay, you’re
outside there with your friends?

CALLER: Yes.

911 OPERATOR: Okay. Let me stay on the phone with
you to make sure his condition doesn’t get worse, and I’ve got to
get somebody to call Herndon. Okay? Hold on just one second.

CALLER: Okay.

* * * * * * *

911 OPERATOR: Is he awake?

CALLER: Yes.

911 OPERATOR: Okay. Tell him—do you have a cloth
or something you can hold on his stomach? You need to get a
clean shirt or a clean towel and hold it on the bleeding. Okay?

CALLER: Okay.

Following the incident, Green died as a result of stab wounds inflicted with a knife during

the altercation. Subsequently, a jury convicted appellant of manslaughter and this appeal

followed.

II. 911 CALL

On appeal, appellant contends the trial court abused its discretion in admitting the 911

recording into evidence under the excited utterance exception to the hearsay rule. We disagree

with appellant.

“As a general rule, hearsay evidence is incompetent and inadmissible,” and “the party

seeking to rely upon an exception to the hearsay rule has the burden of establishing

admissibility.” Neal v. Commonwealth, 15 Va. App. 416, 420-21, 425 S.E.2d 521, 524 (1992).

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

excited utterance can be decided.” Clark v. Commonwealth, 235 Va. 287, 292, 367 S.E.2d 483,

486 (1988). “Resolution of the issue depends [upon] the circumstances of each case.” Id.
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 “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.”

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

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

Here, during rebuttal, the Commonwealth moved to admit into evidence the recording of

McLachlan’s dialogue with the 911 operator. Out of the jury’s presence, the trial court heard the

911 recording. In resolving that the recording qualified as an excited utterance, the trial court

found McLachlan, a witness to the event, made “spontaneous” statements, under the influence of

and contemporaneous with the “very startling event,” and without “any time for reflection” or

“premeditation.” Appellant claims, nonetheless, that the call does not qualify as an excited

utterance because McLachlan’s statements were made “in response to questions from the 911

operator.”

We addressed the same argument in Bowling v. Commonwealth, 12 Va. App. 166, 403

S.E.2d 375 (1991). In that case, the victim, who was mortally wounded from gunshot wounds to

the stomach, called 911 about ten minutes after the shooting. Id. at 177, 403 S.E.2d at 381.

During the exchange with the 911 operator, the victim disclosed that he was shot “with a .25 or

.32” by “one black male” who “was running” and “headed to the Fort Cinema.” Id. at 175, 403

S.E.2d at 380. Bowling argued, like appellant, that because the victim’s statements were made

“in response to questions” by the 911 operator, they were not sufficiently spontaneous to be

admitted under the excited utterance exception. Id. We rejected Bowling’s argument, noting as

follows:
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 “To pivot the admissibility of a subsequent statement,
however spontaneous, on the question[] of whether it was
prompted by an equally spontaneous inquiry would serve no useful
purpose. If the question or questioner suggested or influenced the
response, then the declaration may lack the necessary reliability to
be admitted.”

Id. at 176, 403 S.E.2d at 380 (quoting Martin v. Commonwealth, 4 Va. App. 438, 442, 358

S.E.2d 415, 418 (1987)). Concluding that the victim’s statements to the 911 operator “were not

the result of premeditation, reflection or design, but a reaction to the startling events” which

resulted in the victim’s death several hours later, we held the trial court properly admitted the

911 recording pursuant to the excited utterance exception to the hearsay rule. Id. at 177, 403

S.E.2d at 381.

The same rationale applies here. McLachlan, who had just witnessed a violent

confrontation, aided the victim who lay mortally wounded from the stabbings. McLachlan also

faced the threat that the assailant would return to the scene to perpetrate further harm.

McLachlan spoke to the 911 operator and described the incident and the assailant within minutes

of the event. The operator responded to McLachlan’s initial report of the confrontation to

quickly ascertain the gravity of peril McLachlan faced and by directing McLachlan to render aid

to a dying man. Considering the reliability of the statements in accord with Bowling, we

conclude the trial court did not abuse its discretion in finding that McLachlan’s responses to the

911 operator’s questions were not suggested or influenced by the questions posed by the 911

operator.

Thus, the fact that McLachlan was answering questions, rather than relaying a

spontaneous narrative, does not indicate her statements were not excited utterances. See United

States v. Joy, 192 F.3d 761, 766-67 (7th Cir. 1999) (holding that the fact that the witness’

statements to a 911 operator were responses to questions did not mean they were not

“spontaneous, exited, and impulsive”). Compare Clark, 235 Va. at 293, 367 S.E.2d at 486
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(holding that statements made by a gunshot victim as to his assailant’s identity, while the victim

was mortally wounded and suffering from the trauma of the shooting, were admissible as excited

utterances even though the statement was prompted by a question some five to ten minutes after

the shooting), and Harris v. Commonwealth, 8 Va. App. 424, 430, 382 S.E.2d 292, 295-96

(1989) (holding that statements made by gunshot victim within ten minutes of the shooting while

victim lay fatally wounded are admissible as excited utterances even though the victim made the

statements in response to questions), and Martin, 4 Va. App. at 442, 358 S.E.2d at 418 (holding

that statements made by child rape victim are admissible as excited utterances even though the

victim made the statements in response to questions), with Goins v. Commonwealth, 218 Va.

285, 288, 237 S.E.2d 136, 138 (1977) (holding that a victim’s statement identifying assailant,

made ten to fifteen minutes after police had interviewed the victim, when police led the victim to

the police vehicle for the purpose of observing assailant, did not qualify as an excited utterance),

and Nicholaou v. Harrington, 217 Va. 618, 622, 231 S.E.2d 318, 322 (1977) (holding that a

statement made by a witness at least six or seven minutes after an automobile-motorcycle

collision, when the investigating officer was questioning one of the parties to the accident, lacked

the characteristics of a spontaneous utterance). Indeed, “it is possible for someone to be too

excited to volunteer pertinent information . . . , and thus the inherent ‘guarantee of truthfulness’

supporting the admission of excited utterances applies equally to declarations made in response

to an inquiry.” Joy, 192 F.3d at 767. Accordingly, the trial court did not err in admitting the 911

recording into evidence under the excited utterance exception to the hearsay rule.

Appellant next contends the Confrontation Clause of the Sixth Amendment precluded

admission of the 911 recording. Relying on Crawford v. Washington, 541 U.S. 36 (2004), and its

progeny, Davis v. Washington, 547 U.S. 813 (2006), appellant claims that McLachlan’s

statements were testimonial in nature and, therefore, inadmissible. We disagree.

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 Although we will not disturb on appeal decisions regarding the admissibility of evidence

absent an abuse of the trial court’s discretion, Breeden v. Commonwealth, 43 Va. App. 169, 184,

596 S.E.2d 563, 570 (2004), we review de novo whether a particular category of proffered

evidence is “testimonial hearsay,” Jasper v. Commonwealth, 49 Va. App. 749, 755, 644 S.E.2d

406, 409 (2007).

The Confrontation Clause of the Sixth Amendment to the
United States Constitution, a “procedural guarantee” that also
“applies to state prosecutions,” Michels v. Commonwealth, 47
Va. App. 461, 466, 624 S.E.2d 675, 678 (2006), provides that, “In
all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him,” U.S. Const. amend.
VI.

Id. at 753, 644 S.E.2d at 409. Recently, the United States Supreme Court considered the right of

confrontation in Crawford, clarifying that “[w]here testimonial evidence is at issue, . . . the Sixth

Amendment demands what the common law required: unavailability and a prior opportunity for

cross-examination.” Crawford, 541 U.S. at 68. “Now, under Crawford, the question whether

admission of a hearsay statement against a criminal defendant violates the Confrontation Clause

turns on whether the statement is ‘testimonial’ in nature.” Magruder v. Commonwealth, 275 Va.

283, 294-95, 657 S.E.2d 113, 118 (2008).

Subsequently, in Davis, the United States Supreme Court expounded on what Crawford

characterized as “testimonial” statements in the context of an interrogation during a 911 call. In

doing so, the Court announced the primary purpose doctrine, as follows:

Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.

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Davis, 547 U.S. at 822. Examining the call in question under this framework, the Court noted, as

follows:

(1) the caller was describing the events as they were happening;
(2) the caller was facing an ongoing emergency; (3) the nature of
what was asked and answered was necessary to resolve the present
emergency rather than learn what happened in the past; and (4) the
caller’s answers were frantic[, provided over the phone, in an
environment that was not tranquil, or even (as far as any
reasonable 911 operator could make out) safe].

United States v. Proctor, 505 F.3d 366, 371 (5th Cir. 2007) (citing Davis, 547 U.S. at 827); see

also United States v. Cadieux, 500 F.3d 37, 41 (1st Cir. 2007). Because the caller was not

testifying as a witness, but rather, was “enabl[ing] police assistance to meet an ongoing

emergency,” the Court concluded the 911 call did not produce testimonial statements. Davis,

547 U.S. at 828.

Applying the primary purpose doctrine to the facts of this case, we conclude that

McLachlan’s statements to the 911 operator were not testimonial in nature. Viewing the

circumstances objectively, it is clear that McLachlan faced an ongoing emergency manifested by

two sources of distress: Green’s life-threatening condition and the present and proximate danger

that appellant, a potentially armed assailant who had stabbed Green and fled into the

neighborhood, would return to the scene to injure Green, McLachlan, or Gann.

McLachlan described the events as they were happening. She spoke of whether Green

was conscious, bleeding, and breathing as the deteriorating condition was actually occurring.

The operator responded to the trauma by directing McLachlan to apply pressure to the wounds

with a clean towel to slow the bleeding and kept her on the phone “to make sure [Green’s]

condition [did not] get worse.” Asked by the operator how Green was injured, who committed

the stabbing, whether the perpetrator was armed, and where the perpetrator fled, McLachlan

replied that appellant hit Green in the stomach with a beer bottle, she did not know if he was

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armed, and he fled “towards Herndon Parkway.” In addition, the emergency was ongoing

throughout the interrogation. The nature of what was asked and answered was necessary to

enable the police to arrange for the arrival of the appropriate medical services to treat Green’s

injuries and to warn police that appellant, a dangerous and potentially armed man, ran at-large in

the neighborhood. Because McLachlan rendered aid to a dying man while facing the threat of

appellant’s return to the scene, she was “in an environment that was neither tranquil nor safe.”

Cadieux, 500 F.3d at 41 (citing Davis, 547 U.S. at 826-27).

Appellant claims, however, that McLachlan’s statements were testimonial because the

original emergency ended when the altercation between appellant and Green ceased. Thus, he

argues, the call focused on a criminal investigation of a completed event evident from the

operator’s questions as to “who was the cause of the wounds, where that person went and what

he was wearing.” Appellant’s contention has no merit.

In Proctor, a witness called 911 immediately following the crime, recounting that the

defendant stole a gun, fired it twice, and fled into a nightclub with the loaded weapon. Proctor,

505 F.3d at 371-72. The caller described the defendant and his criminal history as a convicted

felon, reported that he was on drugs, and described his location. Id. On appeal, the defendant

argued “the emergency had already passed, because he had run away with the weapon at the time

of the 911 call and, therefore, the 911 conversation was testimonial.” Id. at 372. Rejecting the

defendant’s claim, the court reasoned that his retreat into a nightclub “provided no assurances

that he would not momentarily return” to confront the caller and other witness. Id. Moreover, as

the court noted, the caller “could have reasonably feared that the people inside the nightclub

were in danger.” Id. The court concluded that a “reasonable viewing” of the 911 call was that

the caller and operator “were dealing with an ongoing emergency involving a dangerous felon,

and that the 911 operator’s questions were related to the resolution of that emergency.” Id.

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 The same conclusion is equally applicable in this case. The emergency had not ended

and was not limited to rendering aid to Green. Rather, the emergency also involved a dangerous

assailant who had just stabbed Green, was potentially armed, and fled into the surrounding

neighborhood with no guarantee that he would not return and cause further harm to Green,

McLachlan, Gann, or other residents of the neighborhood. McLachlan could have “reasonably

feared” that she, Green, and Gann were in danger. In fact, the operator’s questions showed that

she was trying to resolve the emergency by attempting to compose McLachlan, asking her to

“settle down,” and then by seeking to understand the seriousness of the peril McLachlan faced.

Here, as in Proctor, the operator’s effort to resolve the ongoing emergency by

establishing the identity of the assailant, including his location and physical description, so that

the officers might know whether they would be encountering a violent felon, did not render

McLachlan’s responses testimonial. See also Cadieux, 500 F.3d at 41 (concluding that the caller

responded to the dispatcher’s questions tailored to identify the location of the emergency, its

nature, and the perpetrator, and the emergency did not end until the perpetrator was

apprehended); United States v. Arnold, 486 F.3d 177, 189 (6th Cir. 2007) (concluding that the

“exigency of the moment” had not ended even though the victim left the house where assailant

remained, went around the corner, and called 911); United States v. Clemmons, 461 F.3d 1057,

1060-61 (8th Cir. 2006) (concluding that the gunshot victim’s statements made just after the

shooting in response to the police officer’s questions as to who shot him were nontestimonial);

United States v. Thomas, 453 F.3d 838, 844 (7th Cir. 2006) (concluding that the caller’s answers

were nontestimonial even though made in response to the 911 operator’s questions as to “who

had the gun” and where the victim lay injured).

Appellant further contends that the “prejudice of the 911 call” to appellant “far

outweighed any probative value.” Specifically, he claims that “the crying of Ms. Gann and

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Ms. McLachlan” and the “moaning noises being made by Mr. Green in the background” had a

prejudicial effect. We disagree with appellant.

“In determining whether evidence should be admitted, the trial court must apply a

balancing test in assessing the probative value of the evidence and its prejudicial effect.”

Dandridge v. Marshall, 267 Va. 591, 596, 594 S.E.2d 578, 581 (2004). “This determination is

left to the sound discretion of the trial court and will be reversed on appeal only upon a showing

of an abuse of discretion.” Lombard v. Rohrbaugh, 262 Va. 484, 492, 551 S.E.2d 349, 353

(2001).

In a sense, all “evidence tending to prove guilt is prejudicial”—at
least from the point of view of the person standing trial. Virginia
law, however, intervenes only when the alleged prejudice tends to
inflame irrational emotions or leads to illegitimate inferences. And
even then, it becomes a matter of degree. . . . We generally defer to
trial judges on this subject because they, unlike us, participate first
person in the evidentiary process and acquire competencies on the
subject that we can rarely duplicate merely by reading briefs and
transcripts.

Thomas v. Commonwealth, 44 Va. App. 741, 757-58, 607 S.E.2d 738, 746 (citations omitted)

(quoting Powell v. Commonwealth, 267 Va. 107, 141, 590 S.E.2d 537, 558 (2004)), aff’d on

reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).

In this case, the trial court judge implicitly found no prejudice when he made a finding of

fact that he “couldn’t hear Mr. Green say anything” on the 911 recording. “Principles of

appellate review require that we affirm determinations of fact made by the trial court unless there

is no support for such determinations in the record.” Commercial Underwriters Ins. Co. v. Hunt

& Calderone, P.C., 261 Va. 38, 44, 540 S.E.2d 491, 494 (2001). Based on our review, we cannot

conclude that this factual finding of the trial court is without support in the record. In addition,

we cannot say that the crying of Ms. Gann and Ms. McLachlan, clearly a natural reaction to the

violent stabbing of their friend, rendered the recording prejudicial. See Joseph v.

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Commonwealth, 249 Va. 78, 85-86, 452 S.E.2d 862, 867 (1995) (concluding that a videotape

was not inadmissible on its second playing merely because “the jury could hear the gunshot and

the victim’s short scream”). Under the circumstances, we cannot conclude that the trial court

abused its discretion in finding no prejudice.

III. SUFFICIENCY OF THE EVIDENCE

Appellant asserts the evidence was insufficient to support his conviction for voluntary

manslaughter because he claims he acted in self-defense. We disagree.

In reviewing the sufficiency of the evidence to support a conviction, “‘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 that may be drawn

therefrom.’” Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)

(quoting Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)). “In a jury

trial, the credibility of the witnesses and the weight accorded to their testimony are matters solely

within the province of the jury.” Lynn v. Commonwealth, 27 Va. App. 336, 351, 499 S.E.2d 1, 8

(1998). “We will not disturb the conviction unless it is plainly wrong or unsupported by the

evidence.” Banks v. Commonwealth, 41 Va. App. 539, 545-46, 586 S.E.2d 876, 879 (2003).

A defendant claiming self-defense “implicitly admits the killing was intentional.”

McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). “To justify the use

of deadly force, the defendant must have reasonably feared death or serious bodily injury from

his victim, and there must have been an overt threat.” Peeples v. Commonwealth, 30 Va. App.

626, 634, 519 S.E.2d 382, 386 (1999) (en banc). “[T]he amount of force used must be

reasonable in relation to the harm threatened.” Diffendal v. Commonwealth, 8 Va. App. 417,

421, 382 S.E.2d 24, 26 (1989). Furthermore, an individual’s right to self-defend “begins where

the necessity begins and ends where it ends.” Thomason v. Commonwealth, 178 Va. 489, 498,

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17 S.E.2d 374, 378 (1941). “Although undisputed facts may establish self-defense as a matter of

law, whether the accused establishes that he or she acted in [self-defense] is generally a question

of fact.” Lynn, 27 Va. App. at 353, 499 S.E.2d at 9 (citations omitted).

At trial, appellant testified that Green introduced the knife into the altercation and

wielded it in appellant’s direction. Appellant further claimed that he believed Green was going

to stab him and stated that he pried the knife from Green’s hand. Appellant also admitted that he

swung the knife at Green as Green continued to punch him. Gann testified that during the

altercation, she saw nothing in Green’s hand. A forensic pathology expert testified that Green

sustained three stab wounds to the chest and one stab wound to the back.

Considering the evidence adduced at trial, the jury could have concluded that appellant

lied during his testimony and could have found that he, in fact, introduced the knife into the

affray and stabbed Green. Indeed, the jury was entitled to credit the Commonwealth’s evidence

that Gann did not see Green with a knife. In the alternative, the jury could have found that Green

originally had the knife but that appellant wrestled it from him and then stabbed Green. Upon

either plausible explanation, the jury, acting within its fact finding discretion, could have found

that the amount of force appellant used, as evidenced by the four stab wounds to Green, was not

reasonable against Green, who either never possessed the knife, or no longer had the knife.

Thus, the jury “resolv[ed] the conflicts and inconsistencies [therein] against [appellant] and

[found] ultimately that the evidence constituted proof of guilt beyond a reasonable doubt.”

Lockhart v. Commonwealth, 34 Va. App. 329, 343, 542 S.E.2d 1, 7 (2001). We hold, therefore,

that the evidence was sufficient to convict appellant of voluntary manslaughter.

IV. CONCLUSION

For these reasons, we affirm the trial court’s judgment and appellant’s conviction.

Affirmed.

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