Jones v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Beales and Retired Judge Benton*
Argued at Alexandria, Virginia

JAMES EDWARD JONES
OPINION BY
v. Record No. 1801-06-4 JUDGE RANDOLPH A. BEALES
OCTOBER 2, 2007
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY
H. Harrison Braxton, Jr., Judge

Blair D. Howard (Howard, Morrison, Howard & Whelan, on briefs),
for appellant.

Rosemary V. Bourne, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.

James Edward Jones (appellant) was charged with aggravated malicious wounding (Code

§ 18.2-51.2), use of a firearm in the commission of a felony (Code § 18.2-53.1), and carrying a

concealed weapon (Code § 18.2-308(A)). The jury convicted appellant of unlawful wounding,

pursuant to Code § 18.2-51,1 a lesser-included offense of aggravated malicious wounding, and of

carrying a concealed weapon. The trial court imposed a sentence of four years of incarceration

for the unlawful wounding conviction and twelve months of incarceration plus a fine for the

carrying a concealed weapon conviction. On appeal, appellant argues that the trial court

committed reversible error when it refused to play for the jury a videotape of his statement to the

*Judge Benton participated in the hearing and decision of this case prior to the effective
date of his retirement on October 1, 2007.
1
The sentencing order contains a clerical error listing Code § 18.2-50 as the statute
criminalizing unlawful wounding. The trial court is hereby granted leave to correct this error.
See Code § 8.01-428(B).
police. We hold the trial court erred, and we reverse the convictions and remand for a new trial

if the Commonwealth is so inclined.

I. Background

Appellant shot his neighbor, Mr. Finnegan, with whom he had been arguing. After the

shooting, Detective Leonard interviewed appellant. The interview was videotaped.

The Commonwealth did not introduce the transcript or the videotape of appellant’s

statement at trial. Although Detective Leonard testified about his investigation of the shooting,

he did not discuss the videotaped statement given by appellant. When testifying on his own

behalf, appellant related the events that led to the shooting and mentioned that he voluntarily

gave a statement to Detective Leonard.

On cross-examination, the prosecutor asked appellant about inconsistencies between his

statement to Detective Leonard and his testimony at trial. Although appellant testified that he

was concerned about Finnegan brandishing an axe just prior to the shooting, appellant admitted

he said nothing about the axe in his statement to the police. He explained that he “didn’t tell

everything that happened” and that he “was under extreme duress in that interview.” The

Commonwealth asked if appellant mentioned the axe during his testimony to justify arming

himself with a gun, to which appellant replied no.

Appellant also testified in cross-examination that he did not say anything in his statement

to the police about his wife and stepdaughter seeing any of the events leading to the shooting.

He explained:

I couldn’t tell everything in my mind that happened at the time. I
couldn’t say everything. I was just under duress. I even asked the
detective I’m under duress and hold on a little bit; my mind was
confused. I was devastated over this. I was near tears. I couldn’t
think correctly. There was a lot of things I didn’t say.

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Appellant also explained that he “didn’t recall it at the time.” The prosecutor then asked, “you

were very keyed on, right after you shot Mr. Finnegan, of all the things that you needed to say

and that you needed to do, right?” Later, the prosecutor went back to this inconsistency:

Q. Right. And, yet, when you talked to Detective Leonard, you
have two witnesses to this crime that you say was perpetrated upon
you, and you didn’t mention to Detective Leonard that your wife
and your daughter witnessed the whole attack?

A. No, sir. There’s a lot of things that I didn’t say.

Q. And the reason is, sir, is because you knew that they witnessed
it, but you knew that they witnessed you shooting an unarmed man
without justification, that’s why you didn’t mention to Detective
Leonard, isn’t that true, sir?

A. They testified to what they saw.

Q. And, in fact, you were trying to protect them from having to
give a statement about what they saw that you did, isn’t that true,
sir?

A. That’s not true, sir, at all.

In the cross-examination, the prosecutor also asked:

Q. This idea about [Finnegan] having some hand in his pocket is
one of the things that you felt you needed to say when you first
talked to Detective Leonard, isn’t that true, sir?

A. Sir, I only stated under duress what I saw.

Q. In fact, the story that you were trying to give Detective
Leonard was he was coming at you, he had something in his
pocket, I didn’t know, it could have been a gun, and, so, that – I
turned to fire.

A. I never said that, sir. I never said it could have been a gun. I
never said it could have been anything. I only stated he put his
hand in his pocket.

Q. Well, why were you suggesting that he put his hand in his
pocket?

A. That’s because it’s what he did. I only testified to what he did.
I didn’t say I seen a gun. I didn’t say I seen a weapon. I didn’t say

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 that he did anything except put his hand in his pocket. That’s what
happened.

On redirect, appellant’s counsel asked appellant about the content of the statement given

to the detective. Appellant explained:

I only answered the questions that Detective Leonard asked me. I
didn’t volunteer information. He interviewed me and I answered
the questions that he asked me. He did not ask me anything about
an axe, nor did he ask me about my wife and daughter. So I didn’t
answer that question. I only answered precise questions that he
asked me.

On re-cross-examination, the prosecutor asked, “You said he never asked you about an

axe, but he did ask you why you went to your truck and got your gun, right?” Appellant

answered that he “believe[d]” that he did. Then the prosecutor asked, “You never said one thing

to Detective Leonard about putting your hand up and you backing up; you never said one thing

during that interview, isn’t that true, about that?” Appellant responded, “I don’t recall, sir,

whether I did or whether I didn’t.”

Neither the prosecutor nor appellant’s counsel attempted to introduce the videotaped

statement at the conclusion of appellant’s testimony.2 Instead, when his last witness finished

testifying, appellant’s counsel asked that the videotape be played for the jury, explaining:

[The prosecutor] opened the door when he cross examined my
client. And I think that the videotape should be shown to the jury.
It shows the entire interview that he cross examined – he raised his
voice and he said you didn’t mention the axe, you didn’t mention
your daughter, you didn’t mention this; and then I tried to get into
things and I just think, since he opened all that up and cast all this
-- impugned my client’s credibility about the interview that I now
should be --

2
The prosecutor made no objection to the foundation for admission of the videotape nor
is such an argument made on appeal. In the cross-examination of appellant, as well as the
redirect questioning, both the prosecutor and appellant’s attorney clearly proved appellant made
a videotaped statement to the police. No one questioned whether the recording presented by
appellant’s attorney was that videotape.

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The judge then interrupted and asked why the videotape was admissible when everyone agreed

that the axe and appellant’s wife and stepdaughter were not mentioned in the statement.

Appellant’s counsel explained:

[Y]ou’ve got to look at this videotape, because it wasn’t -- These
sort of questions were never asked. He had him on the stand for an
hour and a half. This detective asked questions, but primarily he
was directing the attention with what happened down at the
roadway. He didn’t concentrate up on what happened in the
driveway. He didn’t even know that there was something going on
at the driveway involving the mother and the daughter. The
detective didn’t even know that, so he didn’t question him about
that.

* * * * * * *

It’s totally unfair for him to say you didn’t do this, you didn’t
mention that, and the jury not be able to see the context --

At this point the prosecutor interrupted to point out that appellant’s counsel was “talking loud

enough for the jurors to hear.” When appellant’s counsel tried to continue his argument, the trial

court ruled that the tape was inadmissible hearsay.

After the jury was excused for the day, the parties argued again about the admissibility of

the tape. Appellant’s counsel explained:

Well, all I’m asking is for the jury, who heard this vigorous cross
examination about the videotape and what he said and what he
didn’t say, I’m just asking the jury to say take a look at it and put it
in context and see what questions he was asked. That interview --
the questions -- many things were asked of him today that were not
asked on that videotape.

He further argued that part of the statement was a prior consistent statement made prior to any

motive to fabricate and, therefore, was admissible. Following the prosecutor’s response, the

judge said, “I think I’ve seen a copy of it. I think a copy of it’s in the file . . . . And I think for –

and – and I’ll take another look at it. At this point I’m going to stand by my ruling.”

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 The jury found appellant guilty of the lesser-included offense of unlawful wounding and

of carrying a concealed weapon. After the trial, appellant’s counsel asked the court to set aside

the verdict, based on the court’s refusal to show the videotape to the jury. The trial court said it

did not believe appellant’s testimony was impeached and denied the motion.

Appellant noted his appeal, asking this Court to overturn his convictions based on the

trial court’s refusal to play the videotape for the jury.

II. Analysis

A. Preservation of the Issue for Appeal

The Commonwealth argues that appellant did not preserve this issue for appeal because

his arguments were not fully developed until his post-trial motion and, therefore, were not

timely. The Commonwealth correctly explains that post-trial motions regarding admission of

evidence generally are not timely, especially after the jury has reached a verdict and been

excused. See, e.g. Poole v. Commonwealth, 211 Va. 258, 260, 176 S.E.2d 821, 823 (1970) (“An

accused may not wait until the Commonwealth has rested its case before challenging the

admissibility of identification evidence . . . because whether such evidence is admissible is a

question involving inquiry by the trial court before the evidence is presented to the jury.”). In

this case, however, at two separate times prior to the beginning of jury deliberations, appellant

asked the trial court to show the videotape to the jury – once at the conclusion of his

case-in-chief and once after the jury was excused for the day. In both instances, he sufficiently

raised the issue.

The post-trial motion was just the last, not the only, means by which appellant argued for

admission of the videotape. Appellant placed sufficient information before the trial court about

the nature of his request when he tried to show the videotape to the jury before he concluded his

case. Appellant repeated this request before the jury began deliberations, when the trial court

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still could have taken action to correct its error. Therefore, appellant clearly preserved his

argument for appeal under Rule 5A:18.

B. Admission of the Videotape

1. Standard of Review

We review decisions involving the admission of evidence for abuse of discretion by the

trial court.

The admissibility of evidence is within the broad discretion of the
trial court, and a ruling will not be disturbed on appeal in the
absence of an abuse of discretion. Coe v. Commonwealth, 231 Va.
83, 87, 340 S.E.2d 820, 823 (1986). Evidence is admissible if it
tends to prove a matter that is properly at issue in the case and if its
probative value outweighs policy considerations.

Blain v. Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988). If we find an abuse

of discretion, then we must also determine if that error was harmless. The Supreme Court has

established the test for non-constitutional errors, such as the one alleged here:

If, when all is said and done, the conviction is sure that the error
did not influence the jury, or had but slight effect, the verdict and
the judgment should stand . . . . But if one cannot say, with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected . . . . If so, or if one is left in
grave doubt, the conviction cannot stand.

[Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728,
731-32 (2001)] (quoting Kotteakos v. United States, 328 U.S. 750,
764-65 (1946)).

Atkins v. Commonwealth, 272 Va. 144, 154, 631 S.E.2d 93, 98 (2006); see Code § 8.01-678

(“When it plainly appears from the record and the evidence given at the trial that the parties have

had a fair trial on the merits and substantial justice has been reached, no judgment shall be

arrested or reversed . . . .”). The Commonwealth bears the burden to prove that the error was

harmless. Beverly v. Commonwealth, 12 Va. App. 160, 163-64, 403 S.E.2d 175, 177 (1991).

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 2. Refusing to Admit the Videotape into Evidence

Appellant argues that the trial court erred when it found he was not impeached by the

prosecutor’s cross-examination. This finding by the trial court was plainly wrong. As the

Supreme Court explained decades ago in Skipper v. Commonwealth, 195 Va. 870, 875, 80

S.E.2d 401, 404 (1954):

A failure to assert a fact when it would have been natural to assert
it amounts in effect to an assertion of the non-existence of the fact.
Such conduct is prima facie, an inconsistency. Wigmore on
Evidence (3d ed.) sec. 1042, p. 733. This inconsistency,
unexplained, has a tendency to discredit the witness.

When discussing the right of a defendant to testify, and noting that a defendant will be open to

cross-examination, the United States Supreme Court held that “witnesses [can] be impeached by

their previous failure to state a fact in circumstances in which that fact naturally would have been

asserted.” Jenkins v. Anderson, 447 U.S. 231, 239 (1980). In this case, the prosecutor’s

examination of appellant was designed to impeach appellant with portions of his previous

statement to the police.

When a witness is impeached with his failure to include particular facts in a previous

statement, then the witness can explain why those facts were not included in the previous

statement. See Skipper, 195 Va. at 876, 80 S.E.2d at 404 (finding it “‘self-evident that witnesses

so situated should be permitted to make such explanation as might be in their power’” (quoting

State v. Reed, 62 Me. 129, 146 (1874))). Appellant did testify at trial that he left out facts in his

initial statement to the police because he was “under duress” and was just answering the

questions that were asked.

The issue then becomes whether appellant, who has explained the inconsistencies

between his earlier statement and his testimony, is also permitted to introduce into evidence the

taped statement. He offers two justifications for its admission: 1) the videotape is a prior

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consistent statement and 2) the videotape also illustrates the circumstances surrounding the

taking of the earlier statement. Because we hold the trial court should have allowed the jury to

view the videotape as evidence of the circumstances surrounding the taking of the statement, we

do not reach appellant’s argument regarding a prior consistent statement.

The Commonwealth argues that the videotape could not be admitted to show the context

of Detective Leonard’s interview with appellant because appellant was simply trying to

circumvent the hearsay rule, had the opportunity to explain the context with his own testimony,

and merely wants to “bolster” his own testimony.

First, appellant did not ask that the videotape be introduced for the truth of the matter

asserted, which is an essential element of hearsay.

“The theory of the hearsay rule is that, when a human utterance is
offered as evidence of the truth of the fact asserted in it, the credit
of the assertor becomes the basis of our inference, and therefore
the assertion can be received only when made upon the stand,
subject to the test of cross-examination. If, therefore, an
extrajudicial utterance is offered, not as an assertion to evidence
the matter asserted, but without reference to the truth of the matter
asserted, the hearsay rule does not apply. The utterance is then
merely not obnoxious to that rule. It may or may not be received,
according as it has any relevancy in the case; but if it is not
received, this is in no way due to the hearsay rule.” VI Wigmore,
Evidence § 1766. (Chadbourne rev. 1976).

Clodfelter v. Commonwealth, 218 Va. 98, 103-04, 235 S.E.2d 340, 343 (1977); see Tennessee v.

Street, 471 U.S. 409, 414 (1985) (noting that confessions have a “nonhearsay aspect,” such as

when introduced “not to prove what happened at the murder scene but to prove what happened

when respondent confessed” (emphasis added)). Appellant’s statement to Detective Leonard was

not hearsay in this context -- it was not presented to prove the truth of the facts asserted in it, but

instead to rehabilitate appellant’s credibility by explaining the inconsistencies between the

statement and his testimony.

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 At trial, the prosecutor suggested in cross-examination that the inconsistencies were

created because appellant was adding “a lot of things . . . in hopes that they can help [his] case

. . . not because they’re true, because they can help [his] case.” For example, during

cross-examination the prosecutor pointed out that, when appellant talked to the police, he did not

mention the axe held by Mr. Finnegan, and he did not say that his wife and stepdaughter were

near the scene during the shooting. Appellant claimed he did not give all of the information to

Detective Leonard because he was “under duress” and because he “only answered the questions

that Detective Leonard asked.”

The prosecutor also characterized and paraphrased appellant’s statement during

cross-examination:

Q. In fact, the story that you were trying to give Detective
Leonard was he was coming at you, he had something in his
pocket, I didn’t know, it could have been a gun, and, so, that -- I
turned to fire.

A. I never said that, sir. I never said it could have been a gun. I
never said it could have been anything. I only stated he put his
hand in his pocket.

Q. Well, why were you suggesting that he put his hand in his
pocket?

A. That’s because it’s what he did. I only testified to what he did.
I didn’t say I seen a gun. I didn’t say I seen a weapon. I didn’t say
that he did anything except put his hand in his pocket. That’s what
happened.

Appellant wanted to show the videotape to the jury to support his explanations, so the

jury would not consider the inconsistencies as relevant or material to his credibility. The

videotape would also show the jury who was correct about the content of the statement -- the

prosecutor or appellant. Appellant should have been permitted to show the jury the videotape so

that the jury members could determine for themselves the extent of the inconsistencies between

the testimony and the statement and could weigh the effect of those inconsistencies on

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appellant’s credibility. Cf. Ford v. Commonwealth, 48 Va. App. 262, 268, 630 S.E.2d 332, 335

(2006) (“[I]t is the province of the jury . . . to weigh the facts and to judge the credibility of the

various witnesses.”).

The United States Supreme Court noted in Crane v. Kentucky, 476 U.S. 683 (1986), that

the circumstances surrounding a statement can be relevant to credibility. Appellant here argued

to the trial court that the jury needed to see the context of the earlier statement to understand why

the omissions occurred. The videotape was relevant to the issues of impeachment and

credibility; viewing it would have given the jury an opportunity to determine for themselves

whether appellant’s descriptions of the earlier statement as given “under duress” and “only

answer[ing] the questions” were correct. The Missouri Court of Appeals, facing a very similar

situation, noted:

At trial, Sam [a defense witness] testified he failed to tell the police
about certain matters raised by the state because he was “under a
lot of stress” when he made his statement. His credibility was in
issue. The precise issue was whether his explanation for the
omissions in his prior statement was credible. Merely hearing him
say he was under stress is significantly different from actually
seeing his demeanor and the manner of his speech that could show
the stress. Indeed, a jury is specifically instructed that “in
determining the believability of a witness and the weight to be
given to testimony of the witness, you may take into consideration
the witness’[s] manner while testifying; . . .” MAI-CR3d 302.01.
And, on appeal, we consistently emphasize that the proper
determination of a witness’s credibility depends in large part upon
his demeanor and manner of testifying. See, e.g. State v. Skillman,
228 Mo. 434, 128 S.W. 729, 731 (Mo. 1910). If these statements
are to make sense in the present context, they must mean the jury
should have been allowed to observe Sam’s demeanor and manner
at the time he made his statement to the police, in order to
determine whether his explanation based on stress was credible.
But, the jury was denied this opportunity and was limited to his
explanation at trial: “I was under a lot of stress.”

State v. Grant, 784 S.W.2d 831, 834 (Mo. Ct. App. 1990) (explaining why the error was not

harmless).

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 In this case, the jury needed to weigh the prosecutor’s implied reasons for the

inconsistencies between appellant’s statement to Detective Leonard and appellant’s testimony.

The trial court should have allowed the jurors to resolve this conflict over appellant’s credibility

by showing them what actually happened, rather than requiring that they rely on the paraphrasing

and descriptions presented by the prosecutor and by appellant.

If evidence is relevant and admissible, then a defendant should be allowed to present that

evidence. The Commonwealth concedes the evidence is relevant,3 but argues the statement was

inadmissible hearsay. However, the bare fact that a declaration was made out-of-court does not

conclusively prove that the statement was hearsay and, therefore, inadmissible:

Whether an extrajudicial statement is hearsay depends upon the
purpose for which it is offered and received into evidence. If the
statement is received to prove the truth of its content, then it is
hearsay and, in order to be admissible, must come within one of
the many established exceptions to the general prohibition against
admitting hearsay.

If, however, the statement is admitted to prove some other
extraneous fact, such as that the statement was in fact made, the
state of mind of the declarant, or notice or knowledge, then the
statement is not hearsay and will be admissible if relevant and not
otherwise violative of another rule of evidence. When evidence
that might otherwise be hearsay is admitted for a limited,
non-hearsay purpose, the trial court must instruct the jury that they
are to consider the evidence for the specific limited purpose; where
such a limiting instruction is given, we presume that the jury
followed that instruction.

Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992) (citations omitted).

In this case, because the Commonwealth chose to use this statement to impeach

appellant, it opened the door to allow appellant to use this statement, too. The Commonwealth

3
The Commonwealth agrees the evidence is relevant, as it concedes that appellant had
the right to explain the inconsistencies between his statement and his testimony. The
Commonwealth, however, wants to limit the evidence on this issue to appellant’s testimony.

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cannot limit appellant’s use of the statement by paraphrasing the major sections of the statement

for the jury, and then expect to have the statement excluded.4 As the Supreme Court noted many

years ago:

In the case of Parrish v. Commonwealth, 81 Va. 1, 14 [(1884)],
this court said:

“In the case at bar, the Commonwealth introduced
the admissions or statements of Parrish to prove the
killing; and, according to all the authorities, ‘if a
prosecutor uses the declaration of a prisoner, he must
take the whole together, and cannot select one part
and leave another; and if there be either no evidence
in the case or no other evidence incompatible with it,
the declaration so adduced in evidence must be taken
to be true.’” Roscoe’s Crim. Evidence, 52, 53; 1
Phillips on Evidence, 537; Brown’s Case (Brown v.
Commonwealth), 9 Leigh (36 Va.) 633, 33 Am. Dec.
263 [(1838)].

In the case of Brown v. Commonwealth, supra, it was said: “When
the confession of a party, either in a civil or criminal case (for the
rule is the same in both) is given in evidence, the whole, as well as
that part which makes for him as that which is against him, must be
taken together and go to the jury as evidence in the case.”

Bowman v. Commonwealth, 174 Va. 461, 463-64, 5 S.E.2d 497, 498 (1939).

Appellant did not ask for admission of the videotape for the truth of the statements made

during the interrogation. Rather, he wanted the jury to see the context in which these statements

and omissions were made and determine for themselves which characterization of the

inconsistencies was accurate. The trial court erred in refusing to show the videotape to the jury.

4
The Commonwealth argues that appellant should have asked to have a portion of the
statement introduced rather than the entire statement. As the trial court made clear that it did not
think that any of appellant’s statement to Detective Leonard could be introduced, and the
cross-examination discussed various inconsistencies and appellant’s manner and motivation
throughout the entire interview, this argument by the Commonwealth is not persuasive.

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 3. Harmless Error

The error here involves exclusion of evidence that could have rehabilitated appellant’s

credibility. The record does not establish that the error “plainly” did not affect the verdict. In

Crumpton v. Commonwealth, 9 Va. App. 131, 138, 384 S.E.2d 339, 343 (1989), we reached a

similar conclusion:

The Commonwealth attacked Crumpton’s credibility with his prior
inconsistent statements. We cannot determine that a full
explanation under the limitations set out above rather than
Crumpton’s restricted explanation would not have affected the
jury’s determination of Crumpton’s credibility and ultimately his
guilt or innocence of the charge against him.

Appellant was convicted of a lesser-included offense. He may have been exonerated if

the jury found his testimony was entirely credible. Therefore, we cannot find this error was

harmless without second-guessing the jury’s evaluation of appellant’s credibility. Consequently,

the Commonwealth has failed to prove the error was harmless.

III. Conclusion

For the reasons noted above, we must hold that the trial court erred in refusing to show

the videotape to the jury. We reverse the convictions and remand for a new trial, if the

Commonwealth is so inclined.

Reversed and remanded.

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