COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
JASON SANDERS WOLFE
OPINION BY
v. Record No. 1714-00-3 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WYTHE COUNTY
J. Colin Campbell, Judge
David S. Saliba (Laura E. Wilson; Saliba &
Co., P.C., on briefs), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Randolph A. Beales, Acting Attorney
General, on brief), for appellee.
Upon his guilty plea, Jason Sanders Wolfe was convicted of
first-degree murder, in violation of Code § 18.2-32. On appeal,
he contends that the trial court erred at sentencing (1) in
considering the portions of the pre-sentence report and
probation officer's testimony containing extra-judicial
statements made by his wife, (2) in admitting evidence of
unadjudicated criminal conduct based on hearsay that had no
indicia of reliability, and (3) in admitting the pre-sentence
report into evidence. For the following reasons, we affirm the
judgment of the trial court.
I. BACKGROUND
On April 11, 2000, Wolfe pled guilty to first-degree
murder. The trial court ordered a pre-sentence report and set
sentencing for June 27, 2000.
At the beginning of the sentencing hearing, Wolfe moved to
prohibit the Commonwealth from introducing a portion of the
pre-sentence report regarding a charge that he had made a
threatening telephone call. He argued that this charge had been
dismissed and, therefore, was irrelevant to his criminal history
and his background and should not be considered.
The trial court ruled:
I'm going to deny your motion. The Court
finds that it's part of the history of the
defendant and it's a proper subject to be
recorded in the presentence report. What
weight the Court gives it is a matter for
the Court to consider, but I will not remove
it.
Next, Wolfe moved to prohibit the Commonwealth from
introducing evidence of statements made by Christy Terry, his
wife, on the ground that those statements were barred by Code
§ 19.2-271.2.
The trial court denied Wolfe's motion, ruling:
[Ms. Terry's] statements were in essence
published. They were made public by her
before the marriage. . . . [T]hey were made
at a time when she was seeking a protective
order on the grounds that she feared for her
lift [sic], and I think that coupled with
the fact that this is not an evidentiary
trial on her statements, but this is a
presentence report giving a history, I don't
- 2 -
think [Code § 19.2-271.2] applies and I deny
your motion.
Over Wolfe's objection, the probation officer testified
that, in 1997, Wolfe threatened a fellow employee at Heilig
Meyers with a box-cutter. The probation officer testified that
she had spoken to Captain Dunagan of the sheriff's office, who
had investigated this incident, but had not spoken to the victim
or to any witness. She included information about the incident
in the pre-sentence report.
The probation officer further testified concerning a
threatening telephone call made by Wolfe to a former girlfriend,
Angela Phillips. The probation officer testified that she
discovered in the juvenile and domestic relations district court
records a criminal complaint that contained the details of the
threatening call. She testified, however, that she had not
spoken directly with Phillips. She included in the pre-sentence
report information that she had obtained from the criminal
complaint concerning this incident.
The probation officer further testified that, in 1999,
prior to her marriage to Wolfe, Ms. Terry filed a motion for a
protective order against him. In the motion, Ms. Terry claimed
that Wolfe had choked, kicked, and pushed her, put holes in the
walls of their apartment, held a cigarette to her ear, and
threatened to kill her and any man with whom he caught her. The
probation officer testified that she acquired this information
- 3 -
by speaking with Captain Dunagan of the sheriff's department,
reviewing a taped interview conducted by an officer, and
reviewing court records. She included information concerning
the protective order in the pre-sentence report.
In imposing sentence, the trial court noted that it had
considered the pre-sentence report and listened to the testimony
of all the witnesses. The trial court noted, in mitigation,
that Wolfe had an "uneventful" criminal history. However, it
also noted that "[Wolfe] had a history of [an] explosive,
uncontrolled temper which probably would never have manifested
itself if he hadn't been abusing alcohol and drugs." The trial
court sentenced Wolfe to forty years confinement, with twelve
years, one month suspended.
II. MARITAL PRIVILEGE
Wolfe first contends that the trial court erred in
considering the portions of the pre-sentence report and the
probation officer's testimony relating extrajudicial statements
made by Christy Terry, his wife. He argues that Code
§ 19.2-271.2, the marital privilege statute, prohibits the
Commonwealth from introducing such evidence.
Code § 19.2-271.2 provides:
In criminal cases husband and wife shall be
allowed, and, subject to the rules of
evidence governing other witnesses and
subject to the exception stated in
§ 8.01-398, may be compelled to testify in
behalf of each other, but neither shall be
compelled to be called as a witness against
- 4 -
the other, except (i) in the case of a
prosecution for an offense committed by one
against the other or against a minor child
of either, (ii) in any case where either is
charged with forgery of the name of the
other or uttering or attempting to utter a
writing bearing the allegedly forged
signature of the other or (iii) in any
proceeding relating to a violation of the
laws pertaining to criminal sexual assault
(§§ 18.2-61 through 18.2-67.10), crimes
against nature (§ 18.2-361) involving a
minor as a victim and provided the defendant
and the victim are not married to each
other, incest (§ 18.2-366), or abuse of
children (§§ 18.2-370 through 18.2-371).
The failure of either husband or wife to
testify, however, shall create no
presumption against the accused, nor be the
subject of any comment before the court or
jury by any attorney.
In the prosecution for a criminal
offense as set forth in (i), (ii) or (iii)
above, each shall be a competent witness
except as to privileged communications.
In Cairns v. Commonwealth, 35 Va. App. 1, 542 S.E.2d 771
(2001), we said that "[Code 19.2-271.2] pertains specifically to
testimony in criminal cases." Id. at 10, 542 S.E.2d at 775.
Ms. Terry's statements were not given as testimony in a criminal
case, but were made during the investigatory stages of a
separate crime. She was not compelled to testify against Wolfe,
and, in fact, did not testify. Code § 19.2-271.2 does not apply
to a report of her earlier extra-judicial statements. See
Livingston v. Commonwealth, 21 Va. App. 621, 628, 466 S.E.2d
757, 760 (1996) (statute does not pertain to information given
during pretrial investigations). See also Burns v.
- 5 -
Commonwealth, 261 Va. 307, 332-33, 541 S.E.2d 872, 889-90 (2001)
(setting forth a similar ruling with respect to Code
§ 8.01-398(A) pertaining to confidential spousal
communications).
Furthermore, "while preserving in the 'witness spouse
. . . the privilege' to avoid compelled testimony," Code
§ 19.2-271.2 affords a defendant on trial no right to object to
his spouse's voluntary testimony. See Turner v. Commonwealth,
33 Va. App. 88, 95, 531 S.E.2d 619, 622 (2000). 1 Ms. Terry's
statements were in no sense compelled, but were made
voluntarily.
Accordingly, the trial court did not err in considering the
portions of the pre-sentence report and the probation officer's
testimony relating statements made by Ms. Terry.
III. UNADJUDICATED CRIMINAL CONDUCT
Next, Wolfe contends that the trial court erred at
sentencing in admitting evidence of unadjudicated criminal
conduct. He argues that the report of his prior conduct,
1
Former Code § 19.2-271.2 provided:
In criminal cases . . . neither [husband nor
wife] shall be compelled, nor, without the
consent of the other, allowed, to be called
as a witness against the other . . . .
The 1996 amendment eliminated the underlined language. See 1996
Acts of Assembly, Ch. 423.
- 6 -
included in the pre-sentence report, was based on hearsay that
bore no indicia of reliability.
We have held that a trial judge
may rely upon a defendant's criminal record.
He may consider prior juvenile
adjudications, dismissed juvenile charges
and pending charges, charges for which the
accused has been indicted, but not
convicted, offenses for which the defendant
has been convicted, but not sentenced,
convictions on appeal, and evidence of
unadjudicated criminal activity. . . .
Thomas v. Commonwealth, 18 Va. App. 656, 659, 446 S.E.2d 469,
471 (1994) (en banc) (citations omitted). In holding that a
trial court may consider a pre-sentence report containing
hearsay and evidence of unadjudicated crimes without offending
the due process guarantee, the Supreme Court has stated that
"most of the information now relied upon by judges to guide them
in the intelligent imposition of sentences would be unavailable
if information were restricted to that given in open court by
witnesses subject to cross-examination." Williams v. New York,
337 U.S. 241, 250 (1949).
"In the sentencing phase of a case, the trial court may
rely upon hearsay testimony." Alger v. Commonwealth, 19 Va.
App. 252, 258, 450 S.E.2d 765, 768 (1994). "The information
relied upon by the court must, however, have some indicia of
reliability." Id.
- 7 -
A. BOX-CUTTER INCIDENT
We find no error in the trial court's admitting evidence
that on a prior occasion Wolfe held a box-cutter to a
co-worker's throat. The probation officer learned of this from
Captain Dunagan of the sheriff's department, who had
investigated the co-worker's complaint. The probation officer
reported that the victim had not pressed charges because he was
frightened. Wolfe was fired after this incident. These
circumstances provide the requisite "indicia of reliability."
Therefore, this evidence was properly admitted.
B. THREATENING PHONE CALL
We find no error in the trial court's admitting evidence
that Wolfe made a threatening phone call to his former
girlfriend, Angela Phillips. According to the probation
officer's testimony, this call was the subject of a criminal
complaint filed in the juvenile and domestic relations district
court. The pre-sentence report recited that the court took this
accusation under advisement for one year and eventually
dismissed it. Moreover, Wolfe acknowledged that Ms. Phillips
had sworn an affidavit charging that he had threatened to kill
her and anyone she was dating. This evidence bears the
requisite "indicia of reliability" and, therefore, was properly
admitted.
- 8 -
C. MOTION FOR PROTECTIVE ORDER
We find no error in the trial court's admitting into
evidence the portion of the pre-sentence report and the
probation officer's testimony concerning prior conduct between
Wolfe and Ms. Terry. The probation officer testified that she
had reviewed a taped interview of Ms. Terry by Captain Dunagan,
in which Ms. Terry stated that Wolfe had choked, kicked and
pushed her, put holes in the walls of their apartment, held a
cigarette to her ear, and threatened to kill her and any man
with whom he caught her. The probation officer testified that
she had also reviewed a protective order that was issued because
of these allegations. This evidence bears the requisite
"indicia of reliability" and, therefore, was properly admitted.
IV. PRE-SENTENCE REPORT
Finally, Wolfe contends that the trial court should have
excluded the pre-sentence report "in its entirety." However,
because Wolfe failed to move the trial court to exclude the
entire report, Rule 5A:18 bars our consideration of this issue.
"The Court of Appeals will not consider an argument on appeal
which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998);
see Rule 5A:18. The record reflects no reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18. 2
2
Code § 19.2-299 requires that the report on Wolfe's
criminal history "shall be filed as a part of the record." Id.
- 9 -
The judgment of the trial court is affirmed.
Affirmed.
- 10 -