COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Humphreys and McClanahan
Argued at Richmond, Virginia
RUSSELL ADAM PELLETIER
OPINION BY
v. Record No. 3016-02-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 10, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY
John R. Cullen, Judge
J. Lloyd Snook, III (Snook & Haughey, on briefs), for appellant.
Richard B. Smith, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
Russell Adam Pelletier appeals his conviction of rape in violation of Code § 18.2-61;
capital murder during the commission of, or subsequent to, rape in violation of Code § 18.2-31;
using a firearm during the commission of murder in violation of Code § 18.2-53.1; and
possessing a firearm after having been a convicted of a felony in violation of Code § 18.2-308.2.
He contends the trial court erred by: 1) allowing dog trailing evidence in the case; 2) allowing
experts to testify that their trailing dogs can determine the age of the trail and the direction of
travel of the subject being trailed; 3) allowing expert opinion testimony when the expert cannot
explain the scientific basis for the opinion; and 4) ruling inadmissible on grounds of hearsay
testimony regarding the victim’s consensual sexual relations with the defendant and her fiancé.
For the reasons that follow, we affirm his conviction.
I. Background
On appeal, we review the evidence and all reasonable inferences that may be drawn in the
light most favorable to the Commonwealth as the party prevailing below. Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). So viewed, the record shows that
Aimee Marie Meadows, a twenty-three-year-old woman residing in Louisa County with her
parents, was raped and murdered on November 12, 2000. Russell Adam Pelletier was charged
and convicted of rape in violation of Code § 18.2-61; capital murder during the commission of,
or subsequent to, rape in violation of Code § 18.2-31; using a firearm during the commission of
murder in violation of Code § 18.2-53.1; and possessing a firearm after having been convicted of
a felony in violation of Code § 18.2-308.2. The jury fixed his sentence at life in prison for
capital murder and rape, and 3 years for illegal use of a firearm. The trial court entered final
judgment consistent with the jury’s verdict on November 4, 2002, and also sentenced appellant
to 2 years for illegal possession of a firearm. This appeal followed.
Pelletier and Meadows both resided in Blue Ridge Shores, a subdivision located in
Louisa County. Meadows left the family home to walk the dog after supper on November 12,
2000. She did not return. Her father, increasingly concerned about his daughter’s welfare,
began calling for her and the dog about 8:00 p.m. The dog returned alone about two hours later.
An extensive search of the area proved unsuccessful. At 11:24 p.m., Meadows’s father notified
the police that his daughter was missing.
Officer MacKay had been notified at 8:05 p.m. of a “domestic situation” at the Pelletier
residence involving Pelletier and his mother. MacKay began looking for both Meadows and
Pelletier, but found neither.
Meadows’s body was ultimately discovered around noon on November 13, 2000 by a
Blue Ridge Shores resident. Her body was floating about twelve to fifteen feet from a point of
land which extends into a lake. A wound to the back of her head, two inches behind the left ear
and below the earlobe, was observed.
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At trial, Penny Radecker testified that she heard a gunshot about a half-hour or hour after
she started using her computer at 10:00 p.m. the night Meadows failed to return home.
Radecker’s house is a two-minute walk from the beach area where Meadows’s body was found.
Shawn Lamb, a friend of Pelletier, received a telephone call from Pelletier between 10:30
and 11:00 on the same night. Pelletier told Lamb he had shot and killed a girl and threw her
body into the lake. Lamb did not know Meadows and initially gave little credence to Pelletier’s
account. When he heard media reports about the killing, he contacted police and agreed to
cooperate with their investigation by wearing a “wire” when he visited Pelletier’s home on
November 16, 2000. Pelletier told him that he met a “girl” walking and that he “started slapping
her around, took her by the woods, told her to take her clothes off and . . . to shake that ass.” He
said that, after the rape, they “went down to this boat,” which he rowed to the middle of the lake.
He asked Meadows if she intended to tell her parents about the rape. He then told her to look at
him, put a gun against her head, and shot her. He described the shot as “close” to the victim,
such that it “kind of like splattered.” Pelletier also told Lamb that “it was too much to row back
so he threw [the victim] over into the lake.” When he got back to the “bank or dock,” Pelletier
said he sank the boat.
Andrew Lettner, another friend of Pelletier, was present when Pelletier talked to Lamb.
He heard Pelletier state that, after he “had sex” with Meadows, “they went to the beach,” got “in
a boat and the girl ended up dead.” Lettner testified that Pelletier said that he had pulled the gun
on her, told her to undress, made her bend over, and raped her. After telling “the girl” to put her
clothes back on, he forced her to walk to the beach and “made her get into the boat.” After she
stated her intention to tell her father about the rape, Pelletier “grabbed her by the back of the
head and shot her once.” Lettner also testified that Pelletier said he threw “the girl’s” body in the
water, rowed back to the shore, wiped his fingerprints off, and walked home.
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While in jail, Pelletier wrote a letter to Lettner, which was introduced into evidence,
asking Lettner to lie about what happened and explaining the approach he wanted Lettner to
take:
We were chilling [at Pelletier’s house] drinking. After a while we
saw Amy [sic] walking her dog up the street. I called her over to
us. The dog left. I asked her if I could fuck. She said OK. So I
fucked it, while you keep drinking. . . . Any side question they ask
say I don’t know I was drunk. When I finished fucking, Amy [sic]
asked for some beer. . . . She left about 7:30. If they ask how we
know, you had a watch on. We chilled and drank till 8:30. You
made a phone call for a ride. About 9:00 you left and went home
or wherever. I’m fine after that. You got to memorize this shit. I
need you bad on this. . . . I walk away from this two ways! A dead
man or a rich man. I wanna be rich! When this is in your head till
it hurts, burn this letter!
Dr. William Gormley, Assistant Chief Medical Examiner to the Chief Medical
Examiner’s Office in Richmond, Virginia, testified at trial and concluded that Meadows’s death
was caused by a gunshot wound with a bullet passing through the brain. Other studies were also
conducted by Dr. Gormley, and blood and vaginal swabs were collected.
James Pickelman testified as an expert in firearms identification. He reported the results
of his examination of the bullet taken from Meadows’s body and its comparison with a bullet
found in the ceiling of Pelletier’s bedroom. Both bullets came from a .38 caliber weapon, which
could include a .357 caliber weapon, and both had five lands and grooves which twisted to the
right. Pickelman concluded that bullets were similar and the possibility that both had been fired
from the same weapon could not be eliminated.
Lisa Shiermier, an expert in DNA analysis, testified that Pelletier’s genetic material was
present on vaginal swabs and on the wrist area of the left sleeve of a shirt recovered from the
floor next to the foot of Pelletier’s bed. The stain was a mixture of blood and another fluid.
A hair found wrapped on the brace that held the fire extinguisher inside a boat found on the other
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side of the lake was determined to be consistent with Meadows’s DNA profile. The owner
testified that, to his knowledge, Meadows had never been in his boat.
The Commonwealth also successfully admitted dog trailing evidence by calling two
additional expert witnesses, Detective Stuart L. Garner and Sgt. Patrick Sheridan. In this case,
Garner used a dog named Ranger, and Sheridan used a dog named Annie. Before Garner and
Sheridan were allowed to testify, however, the trial court held a hearing to determine the
admissibility of the dog trailing evidence.1 That hearing established that Garner had been a
bloodhound handler for eighteen years, during which time he had “worked well over a thousand
(1,000) actual cases.” Garner is a member of the “National Police Bloodhound Association,
which is recognized as the foremost authority on bloodhounds within the United States” and
“was co-founder of the Virginia Bloodhounds Search and Rescue Association.” He is an
instructor in the ICAST Association, “a group of handlers and instructors that travel to foreign
countries to assist in the training of bloodhounds.” Garner attends at least two training seminars
a year, and had been an instructor at four to six one-week seminars during each of the two years
that preceded this case. He stated that he “worked bloodhounds” in over 50 Virginia
jurisdictions and that his dogs have been “recognized as credible witnesses within the court
systems of Fluvanna County and Louisa County.”
Garner addressed the process underlying the dog’s ability to follow a trail. He explained
that bloodhounds are able to discriminate among the individual scents of different persons. He
explained that humans cast off skin cells at the rate of 50,000 to 60,000 per minute. These skin
cells are decomposed by naturally occurring bacteria, and the bacteria emit gaseous byproducts
which can be detected by the hound. The scent produced by the decomposition of each person’s
1
The Commonwealth and Pelletier agreed that Garner would provide testimony
regarding the overall theory of dog trailing, but that Garner and Sheridan would testify separately
as to what each dog discovered.
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skin cells is distinct to that individual because each person ingests different kinds of food
products and uses different kinds and amounts of soap and toiletries. The animal discriminates
among all other scents present and has been trained to follow the scent of a particular individual
once exposed to that person’s scent. If the particular scent is not present at the scene, the dog has
been trained to signify the absence of the scent by not “working” or “trailing” and by pulling on
the harness and rope.
Garner further testified that during his dog’s training, Ranger would consistently follow a
trail in the direction in which it was made. Despite efforts by Garner to force Ranger to trail in
the wrong direction, Garner stated that Ranger always traveled in the same direction that the test
subject had traveled. He expressed confidence in his dog’s abilities, stating:
[T]hrough . . . trial and error and setting up and composing trails
and constantly challenging that dog’s abilities, setting up different
sequences, different trails, different links, different ages and also
having as a young dog, being able to observe my runner walk from
Point A to Point B, in my mind I already know which way the
runner has gone. This is for training exercises and that dog
consistently will go the correct direction. . . . [T]hrough my
records, I can show that.
He also testified that Ranger would always track the most recent or “hottest” scent.
Based on the foundation provided by Garner, the trial court found each expert to be
qualified to give opinion evidence on matters involving dog handling, training, and the
interpretation of the dog’s behavior when trailing a particular scent.
Garner and his dog, Ranger, trailed Pelletier on November 15, 2000, beginning from the
point on the beach where Meadows’s body was recovered from the lake. The bloodhound was
alerted to the scent by a towel collected from Pelletier’s home. Garner interpreted Ranger’s body
language as signifying the presence of Pelletier’s scent at that location. The trail led from the
beach, to the clubhouse, out to the main street, South Lakeshore Drive, into a yard, and back to
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the roadway. Ranger followed the scent to the door of Pelletier’s residence, where the dog
indicated the trail ended.
Garner and Ranger also trailed Meadows’s scent, starting at the front door of her
residence and proceeding to the beach, passing by the clubhouse, and then proceeding west past
some boat docks and another large building. The trail led into a wooded area along a path to a
bluff, then to flat ground and the water’s edge. Garner described an area of “pool scent”2 at this
location and testified that the dog’s body language indicated that “something had happened
here.” Ranger eventually left the “pool scent” area and trailed along the water’s edge ending on
the point of land nearest the place where Meadows’s body was recovered. Garner opined that
Meadows had either left the pool scent area and entered the water, or had actually been on the
point of land. He conceded, however, that the scent Ranger detected on the point of land could
have drifted there from a location on, or in, the water. Sheridan and his bloodhound, Annie, also
trailed Meadows and Pelletier and obtained similar results.
Garner also testified that the age of the trail his dog followed in this case ranged from
sixty-one to sixty-four hours old. He explained that he relied on other evidence that indicated the
age of the trail and then observed the dog’s responses on the trail to determine if they
corroborated the known data establishing the trail’s age. Sheridan did not offer an opinion on the
age of the trail or on the possible direction of travel.
In the defense’s case-in-chief, Pelletier called Michael Taylor, a friend of Meadows. But
for a sustained hearsay objection, Taylor would have testified that Meadows told him that she
and Pelletier had been having consensual sexual relations for over two months. Taylor also
would have testified that Meadows told him that she had been having sex with her fiancé, Steve
2
Garner described “pool scent” as a large amount of scent.
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Piatt, unbeknownst to her father, Darrell Meadows, who denied knowledge of any of Meadows’s
sexual encounters.
Pelletier also testified in his own defense. He claimed he had engaged in consensual sex
with Meadows in the woods near his home. He said they were interrupted and that she left after
he gave her some beer. He denied talking by telephone to Lamb on November 12, but admitted
he told Lamb that he had raped and killed Meadows, explained he was “just messing with him.”
Pelletier also claimed Lamb brought a gun into his house and fired into the ceiling. Lamb denied
doing so and denied owning a gun. Pelletier also admitted asking Lettner to lie for him, but
claimed he could not remember making most of the other statements Lettner attributed to him.
He admitted he told Lettner that he ordered Meadows to “shake ass and everything” and that he
had “shot her in the head or something.”
Pelletier challenges his convictions, claiming that the trial court improperly allowed the
dog trailing evidence as set forth above and improperly excluded exculpatory hearsay testimony.
Finding no error, we affirm.
II. Analysis
A. Admissibility of Expert Opinion Regarding Dog-Trailing Evidence
Pelletier contends that the Commonwealth failed to lay a proper foundation for the
admission of Garner’s expert testimony. Specifically, he complains that the Commonwealth did
not establish the reliability of dog-trailing methods because Garner could not scientifically
explain the dog’s ability to discern the age of the trail and the direction in which the suspect
traveled. Pelletier also argues that evidence of the route the dogs followed should not have been
allowed because the dogs did not begin trailing at a place where other evidence proved Pelletier
had been, as required by Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982). We
find that Pelletier’s contentions are without merit.
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“It is well settled in Virginia that the opinion of an expert witness is admissible ‘where
the jury . . . is confronted with issues’ that ‘cannot be determined intelligently merely from the
deductions made and inferences drawn on the basis of ordinary knowledge, common sense, and
practical experience.’” Schooler v. Commonwealth, 14 Va. App. 418, 420, 417 S.E.2d 110, 111
(1992) (quoting Compton v. Commonwealth, 219 Va. 716, 726, 250 S.E.2d 749, 755-56 (1979)).
An “‘expert’s testimony is admissible not only when scientific knowledge is required, but when
experience and observation in a special calling give the expert knowledge of a subject beyond
. . . common intelligence and ordinary experience.’” Hetmeyer v. Commonwealth, 19 Va. App.
103, 108, 448 S.E.2d 894, 898 (1994) (quoting Hubbard v. Commonwealth, 12 Va. App. 250,
254, 403 S.E.2d 708, 710 (1991), aff’d, 243 Va. 1, 413 S.E.2d 875 (1992)).
It is equally “well established that the admissibility of expert testimony is within the
sound discretion of the trial court, and that court’s decision will not be disturbed absent an abuse
of discretion.” Patterson v. Commonwealth, 3 Va. App. 1, 11, 348 S.E.2d 285, 291 (1986); see
also Toro v. City of Norfolk, 14 Va. App. 244, 252, 416 S.E.2d 29, 33 (1992). A challenge to an
“expert’s . . . methods and determinations . . . , even by other experts, does not render
inadmissible expert opinion based on those . . . methods and computations” but goes to the
“weight of the evidence,” raising “factual questions to be determined by the jury.” Hubbard, 12
Va. App. at 255, 403 S.E.2d at 710.
The Virginia Supreme Court has permitted expert testimony regarding dog tracking
evidence when a proper foundation has been laid.
We hold that dog-tracking evidence is admissible in a criminal
case after a proper foundation has been laid to show that the
handler was qualified to work with the dog and to interpret its
responses, that the dog was sufficiently trained and proven tracker
of human scent, that the dog was placed on the trail where
circumstances indicated that the guilty party had been, and that the
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trail had not become so stale or contaminated as to be beyond the
dog’s tracking capabilities.
Epperly, 224 Va. at 233, 294 S.E.2d at 893.
Epperly does not hold that dog tracking evidence must be explained scientifically before
it can be admitted. Nevertheless, Pelletier contends that all expert testimony, whether it involves
a scientific field, such as DNA analysis, or a highly specialized one, such as dog trailing or
tracking, must be preceded by adequate scientific explanation that establishes its reliability. The
courts of the Commonwealth, however, routinely allow expert testimony without a scientific
foundation where “‘the jury . . . is confronted with issues’ that ‘cannot be determined
intelligently merely from the deductions made and inferences drawn on the basis of ordinary
knowledge, common sense, and practical experience.’” Schooler, 14 Va. App. at 420, 417
S.E.2d at 111 (quoting Compton, 219 Va. at 726, 250 S.E.2d at 755-56.). An “‘expert’s
testimony is admissible not only when scientific knowledge is required, but when experience and
observation in a special calling give the expert knowledge of a subject beyond . . . common
intelligence and ordinary experience.’” Hubbard, 12 Va. App. at 254, 403 S.E.2d at 710 (quoting
Neblett, Adm’r v. Hunter, 207 Va. 335, 339-40, 150 S.E.2d 115, 118 (1966)) (emphasis added).
For example, in criminal prosecutions for possession of drugs with the intent to distribute, the
element of “intent to distribute” must often be proved by expert testimony regarding the quantity
of drugs discovered. “‘Expert testimony, usually that of a police officer familiar with narcotics,
is routinely offered to prove the significance of the weight and packaging of drugs regarding
whether it is for personal use.’” Askew v. Commonwealth, 40 Va. App. 104, 109, 578 S.E.2d
58, 61 (2003) (quoting Shackleford v. Commonwealth, 32 Va. App. 307, 327, 528 S.E.2d 123,
133 (2000)). The typical police officer qualifies as an expert based on his experience with
narcotics, not on his ability to explain the scientific theory behind his opinion. An opinion
regarding whether a certain quantity of drugs is inconsistent with personal use is not, in fact,
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susceptible of “scientific” explanation as we traditionally understand the term. It is an opinion
derived wholly from experience. Likewise, a clear majority of states allows dog tracking
evidence despite the fact that the dog’s ability cannot be scientifically explained.
Many courts have ruled that . . . evidence of tracking a defendant is
admissible, subject to establishment of a proper foundation. Even
though the precise scientific basis for dog tracking remains
uncertain, it is clear that such dogs can be trained to almost
unerringly follow a trail left by particular persons even after some
time has passed, and even though the trail has crossed the scent left
by other persons.
Jay M. Zitter, Annotation, Evidence of Trailing by Dogs in Criminal Cases, 81 A.L.R.5th 563
(2003).
Epperly does not require that a scientific foundation be laid for the admission of dog
trailing evidence. Rather, it holds that dog trailing evidence must be empirically shown to be
reliable from experience. The showing of reliability is met by testimony from the handler
establishing that he “was qualified to work with the dog and to interpret its responses” and that
“the dog was a sufficiently trained and proven tracker of human scent.” Epperly, 224 Va. at 233,
294 S.E.2d at 893. Pelletier, in fact, concedes in his opening brief that dog trailing evidence can
be admitted “if it can be shown that, even though we don’t know how or why, there is
overwhelming empirical evidence that the dog has the ability to do what is claimed.”
Here, the Commonwealth met the foundational requirements for dog trailing evidence
established in Epperly, and Garner’s opinion on the direction of travel and the age of the trail
was properly allowed. Garner testified that he had tested Ranger’s ability to discern the direction
of travel. In training Ranger, Garner used a runner to go from point A to point B. After alerting
Ranger to the runner’s scent, Garner took the dog to a point along the trail. Garner tried to force
Ranger to go in a direction opposite to the direction the runner had taken, but “[i]nvariably . . .
he would turn and seek the freshest, hottest scent, thus going [along the path of the runner] from
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A to B.” Garner could not explain the scientific principles underlying Ranger’s ability, opining
only that it must be “God-given instinct.” Garner, however, was not required to establish the
scientific basis of a trailing dog’s ability to follow scent in order for his opinion to be admitted.
His testimony proved that Ranger was “sufficiently trained,” that Garner “was qualified to work
with the dog and to interpret its responses,” and that the responses had proved reliable in
numerous other cases. This empirical evidence was sufficient to establish the reliability and,
therefore, the admissibility of Garner’s opinion. See Hetmeyer, 19 Va. App. at 110, 448 S.E.2d
at 898 (holding that “[e]vidence regarding the trailing dog’s certification, recertification, training
regime, and near-perfect past performance was clearly sufficient to demonstrate the dog’s high
degree of reliability”).
Pelletier also challenges Garner’s opinion regarding the age of the trail, contending it was
nothing more than “post-hoc rationalization.”3 Pelletier misapprehends the nature and scope of
Garner’s testimony. Garner frankly explained that his opinion regarding the age of the trail did
not rest solely on his dog’s trailing efforts. Instead, he relied on other evidence signifying the
age of the trail and then observed the dog’s responses on the trail to determine if they
corroborated the known data on trail age. Garner, furthermore, explained that his opinion was
based on the experience he gathered by investigating thousands of trails of various ages and
comparing the known age of the trails with several empirical factors, such as the speed the dog
traveled on the trail and the tension on his lead. As noted above, the admissibility of expert
opinion may be established by empirically-derived knowledge. See Epperly, 224 Va. at 233, 294
S.E.2d at 893; Hetmeyer, 19 Va. App. at 110, 448 S.E.2d at 898. Consistent with the
3
Pelletier further argues that all of the dog trailing evidence should have been excluded
because it constituted nothing more than “post-hoc rationalization.” However, Pelletier cites no
authority in support of this argument. Accordingly, we decline to address it. Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
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methodology he outlined, Garner acknowledged he was aware of other evidence establishing the
trail’s age and that his opinion was based both on that evidence and the reactions of the dog that
corroborated it. He never testified that his opinion regarding the trail’s age was based solely on
the reactions of the trailing dog as explained by his interpretations of those reactions. We find
that the requisite foundation admitting evidence of trail age was laid and that Pelletier’s objection
to Garner’s opinion on the age of the trail goes only to the weight of his testimony, not to its
admissibility. Tarmac Mid-Atlantic v. Smiley Block Co., 250 Va. 161, 167, 458 S.E.2d 462, 466
(1995); see also Epperly, 224 Va. at 233, 294 S.E.2d at 893. We do not evaluate the weight of
evidence on appeal; that function resides with the trier of fact. See Tarmac, 250 Va. at 167, 458
S.E.2d at 466.
Finally, Pelletier contends that the Commonwealth failed to prove the Epperly
requirement that the dog was placed on the trail where other evidence establishes the defendant
had been. See Epperly, 224 Va. at 233, 294 S.E.2d at 893. To be sure, Garner and his dog began
trailing Pelletier on the beach, and Garner conceded he could not be certain that Pelletier had
been there. He opined that the scent that Ranger picked up may have drifted from the water onto
the pier rather than originating there. However, Epperly does not require definitive proof of the
defendant’s presence at a particular place on the trail. Where the evidence establishes a nexus
with the defendant’s location and the commission of the crime under investigation, the mandate
of Epperly has been met. Here, evidence, both direct and circumstantial, establishes that
Pelletier admitted that he raped and killed the victim and then returned to the beach or the dock
and that the victim’s body was located in proximity to the point of land where the trailing began.
Furthermore, Lettner testified that Pelletier said he “went to the beach” after the rape, and Lamb
testified that Pelletier disposed of Meadows’s body in the lake. We find the evidence connecting
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Pelletier with the trail that Garner and his dog followed was sufficient to meet the Epperly
requirement.
B. Admissibility of Hearsay Testimony
Pelletier also contends that the Court erred in prohibiting Taylor’s testimony regarding
the victim’s statements of her sexual relationship with Pelletier and Piatt. Pelletier contends
Taylor would have testified that, two days before her death, Aimee Meadows told him that she
and Pelletier were having consensual sexual relations. Pelletier also asserts Taylor would have
testified that she told him that “she would sneak downstairs to have sex with . . . Piatt when Mr.
Piatt spent the weekend at the Meadows’s residence.” Taylor’s testimony was prohibited
because it constituted hearsay and did not fall within any recognized exception. Pelletier argues
that the testimony should have been allowed under the “statement against penal interest”
exception to the rule prohibiting hearsay because the victim admitted to fornication, a crime in
Virginia.4 We find that Pelletier’s claims are without merit.
As the party “seeking to rely upon an exception to the hearsay rule,” Pelletier has the
burden of establishing the admissibility of Taylor’s testimony. Neal v. Commonwealth, 15
Va. App. 416, 421, 425 S.E.2d 521, 524 (1992). To come within the declaration against penal
interest exception, the proponent must establish that: “(1) the declarant [was] unavailable to
testify at trial; (2) the statement [was] against the declarant’s interest at the time it was made; and
(3) the declarant [was] aware at the time the statement [was] made that it [was] against his or her
interest to make it.” Randolph v. Commonwealth, 24 Va. App. 345, 355, 482 S.E.2d 101,
4
Pelletier also argues that the refusal to allow Taylor’s testimony violates his Sixth
Amendment right to confrontation. This argument is procedurally barred by Rule 5A:18.
Pelletier did not make the argument known to the trial court until three months after trial in his
motion to set aside the verdict. “Thus, the objection came too late for any error to be corrected
by the trial court, and for the error, if any, to constitute reversible error.” Ryan v.
Commonwealth, 219 Va. 439, 447, 247 S.E.2d 698, 704 (1978); see also Carter v. Nelms, 204
Va. 338, 343, 131 S.E.2d 401, 404 (1963).
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105-06 (1997) (quotations and citations omitted). Whether the declarant was aware that the
statement was against her penal interest is based upon her subjective belief that she could face
criminal charges. See Chandler v. Commonwealth, 249 Va. 270, 279, 455 S.E.2d 219, 224
(1995).
Pelletier, as the proponent of the exception, fails to meet his burden on the third
requirement. No evidence exists that would indicate the victim subjectively believed she was
making a statement against her penal interest when she admitted to sexual relationships outside
of marriage. We find the trial court did not err in excluding the proffered testimony.
III. Conclusion
We conclude that the trial court properly allowed the dog trailing evidence and properly
excluded Taylor’s testimony. Accordingly, we affirm Pelletier’s convictions.
Affirmed.
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