Tuesday 1st
August, 1995.
Joseph Cotton, Jr., Appellant,
against Record No. 2475-92-2
Circuit Court Nos. 91-100 and 91-102
Commonwealth of Virginia, Appellee.
Upon Rehearing En Banc
Before Chief Judge Moon, Judges Baker, Benton, Coleman,
Koontz, Willis, Elder, Bray and Fitzpatrick
Connie Louise Edwards (Connie Louise
Edwards, P.C., on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
By opinion issued December 6, 1994, Cotton v. Commonwealth,
19 Va. App. 306, 451 S.E.2d 673 (1994), we reversed and remanded
Joseph Cotton, Jr.'s, convictions of robbery and use of a firearm in
the commission of robbery. On petition of the Commonwealth, we
granted rehearing en banc on two questions: (1) whether the trial
court properly admitted the victim's statement, made during the
robbery, that she knew the robber, and (2) whether the trial court
properly excluded from evidence a plastic bag that contained a palm
print of an unidentified person other than Cotton. On rehearing en
banc, we reverse the panel decision and find no error with respect to
the admission of the victim's statement. We affirm the panel decision
and reverse the judgment of the trial court with respect to the
exclusion of the plastic bag.
I.
Ms. Neal, a customer in the store at the time of the
robbery, testified that as the robber, who wore a mask, left the store
following the robbery, the victim, Chong Johnson, exclaimed, "I know
him, that's not a real gun. I know him, that's not a real gun." The
trial court admitted this statement under the excited utterance
exception to the hearsay rule.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. The judgment of a trial court
. . . will not be set aside unless it appears from the evidence that
the judgment is plainly wrong or without evidence to support it."
Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497
(1990) (en banc). The victim's statement was made during the course
of an armed robbery, as the perpetrator left the store. Those
circumstances support the trial court's factual finding that the
statement was made spontaneously, induced by the stress and excitement
of the robbery.
Moon, C.J., Baker, Coleman, Willis, Elder, Bray and
Fitzpatrick, JJ., concurring.
Benton, J., with whom Koontz, J., joins, dissenting.
II.
For the reasons stated in the panel decision, 19 Va. App. at
314, 451 S.E.2d at 677, we hold that the trial court erred in
excluding the plastic bag from the evidence.
Moon, C.J., Benton, Coleman, Koontz, Willis, Elder, Bray and
Fitzpatrick, JJ., concurring.
Baker, J., dissenting.
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____________________
Benton, J., concurring and dissenting. Koontz, J., joins in Parts I
and II of this order.
For the reasons stated in my prior concurring and dissenting
opinion, see Cotton v. Commonwealth, 19 Va. App. 306, 316, 451 S.E.2d
673, 678-79 (1994) (Benton, J., concurring in part and dissenting in
part), and for the reasons that follow, I dissent from Part I of the
order, concur in Part II, and concur in the remand for a new trial.
I.
Over Cotton's objection, the Commonwealth attempted to prove
through the testimony of Barbara Neal that Chong Johnson made a
statement as the robber was escaping. Neal testified that when the
robber was leaving the store after taking money, Johnson said "I know
him, that's not a real gun." Neal stated that Johnson appeared to be
"trying to calm everybody down" when she made the statement.
Johnson testified and denied, however, that she said
anything during the robbery. Moreover, Johnson testified that during
the robbery she was close to the robber and she was aware that he,
indeed, had a real weapon. She testified that she recognized the
weapon to be "a sawed-off shotgun" that was wrapped with tape.
As the proponent "'seeking to have hearsay declarations of a
witness admitted as an exception to the general rule [excluding
hearsay evidence],'" Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382,
386 (1984) (citation omitted), the Commonwealth bore the burden of
establishing that the statement was an excited utterance. Id. "The
party seeking to have hearsay declarations 'admitted as an exception
to the general rule must clearly show that they are within the
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exception.'" Jones v. Commonwealth, 11 Va. App. 75, 88, 396 S.E.2d
844, 851 (1990) (emphasis added) (citation omitted). The Commonwealth
failed to carry its burden because Johnson denied making the statement
and because the proof was insufficient to establish that the statement
was not the result of deliberation.
The Commonwealth was obliged to prove that Johnson made a
statement "at such time and under such circumstances as to preclude
the presumption that it [was] the result of deliberation." Nicholaou
v. Harrington, 217 Va. 618, 622, 231 S.E.2d 318, 322 (1977). "Where
the credible evidence for and against this presumption is fairly
balanced, the presumption of deliberation and narration is not
rebutted." Jones, 11 Va. App. at 85, 396 S.E.2d at 850. "The
ultimate test is whether it appears that 'the facts [were] talking
through the party or . . . the party [was] talking about the facts.'"
Doe, 227 Va. at 472, 318 S.E.2d at 385-86 (citation omitted).
The rationale behind admitting an excited utterance over a
hearsay objection is premised upon the existence of evidence tending
to prove that such statement was actually made. "'The spontaneity of
the utterance is deemed to guarantee its trustworthiness, even though
it is hearsay evidence which would otherwise be excluded.'" Doe, 227
Va. at 471, 318 S.E.2d at 385 (quoting Nicholaou, 217 Va. at 622, 231
S.E.2d at 321-22). However, the evidence did not prove that Johnson
made the statement. Johnson emphatically denied that she said
anything. In addition, Johnson testified at trial that during the
event she knew that the robber had an actual gun -- a fact contrary to
the statement Neal sought to attribute to Johnson. With these
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manifest conflicts in the Commonwealth's own evidence, the
Commonwealth failed to prove the statement was made by Johnson.
Furthermore, the Commonwealth's evidence did not establish
that "'[t]he statement [was] . . . instinctive rather than narrative
or the result of deliberation.'" Upton v. Commonwealth, 172 Va. 654,
657, 2 S.E.2d 337, 339 (1939) (citation omitted). Neal's testimony
that Johnson was "trying to calm everyone down" when Johnson made the
purported statement proved that the purported statement was a
narrative resulting from deliberation. Id. The statement reflected a
reasoned and purposeful declaration rather than a "spontaneous and
impulsive" statement. Id. Thus, Neal's testimony did "not overcome
the presumption that [the purported statement] was deliberate."
Jones, 11 Va. App. at 87, 396 S.E.2d at 851.
For these reasons, I dissent from Part I of the order. I
would uphold the panel's decision barring Neal's testimony as to this
matter.
II.
I concur in Part II of the order upholding the panel
decision that the trial judge erred in excluding the plastic bag from
evidence.
III.
I also adhere to my view that the panel erred in approving
the trial judge's decision to allow testimony concerning fingernail
identification. See Cotton, 19 Va. App. at 316, 451 S.E.2d at 678
(Benton, J., concurring in part, dissenting in part, and concurring in
the judgment reversing the convictions and remanding for a new trial).
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____________________
Baker, J., concurring in part, dissenting in part.
The admissibility of evidence is a matter of law to be
determined by the trial court. 1 C. Friend, The Law of Evidence in
Virginia § 8.1 (4th ed. 1993). To be admissible, the evidence must be
both relevant and material. Johnson v. Commonwealth, 2 Va. App. 598,
601, 347 S.E.2d 163, 165 (1986).
The ultimate inquiry in determining whether
evidence is both material--tending to prove a
matter which is properly at issue in the case--and
relevant--tending to establish the proposition for
which it is offered--is: Does the evidence tend
to prove a proposition which is itself provable in
the case?
Id. In finding that the trial court committed reversible error, the
majority necessarily holds that the trial court abused its discretion.
The reason given by the majority in holding that the trial court
abused its discretion is that the plastic bag containing the
unidentified palm print tended to "exonerate" appellant. I
respectfully disagree with that conclusion.
The plastic bag would not refute the affirmative evidence
that the fingernail found in the cash drawer was that of appellant.
Nor would it refute the testimony of the eyewitness who exclaimed, "I
know him" and later, at trial, positively identified appellant as the
robber who placed his hand in the cash drawer and withdrew monies
therefrom. Moreover, it would not support appellant's alibi defense.
If none of these, then for what purpose could it be used to
"exonerate" appellant? I respectfully submit that the plastic bag did
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not tend to prove a proposition which was itself provable in this
case.
Except for the holding by the majority that the trial court
erroneously refused to admit the plastic bag into evidence, I concur
with the remainder of that opinion.
Accordingly, I would affirm the judgment of the trial court.
____________________
In accordance with the majority's decision, the judgments
are reversed and annulled, the verdicts of the jury are set aside, and
the case is hereby remanded to the trial court for retrial, if the
Commonwealth be so advised.
Further, that part of the opinion previously rendered by a
panel of this Court on December 6, 1994 pertaining to Chong Johnson's
statement is withdrawn and the mandate entered on that date is
vacated.
The trial court shall allow court-appointed counsel for the
appellant a total fee of $600 for services rendered the appellant, in
addition to counsel's costs and necessary direct out-of-pocket
expenses.
This order shall be published and certified to the trial
court.
A Copy,
Teste:
Richard R. James, Clerk
By:
Deputy Clerk
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