COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Agee and Kelsey
Argued by teleconference
JODY DANIEL GENT
MEMORANDUM OPINION * BY
v. Record No. 0429-02-3 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 11, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
Anthony E. Collins (Collins & Collins, on
brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Jody Daniel Gent appeals his conviction, after a jury trial,
for three counts of robbery, three counts of breaking and
entering, felony murder, and solicitation to commit a felony.
Gent argues the trial court erred in admitting into evidence two
statements uttered by the victim, and in excluding other
statements uttered by the victim. For the reasons that follow, we
affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
We first note we have long recognized that the admissibility
of evidence is within the broad discretion of the trial court, and
such a ruling will not be disturbed on appeal in the absence of an
abuse of discretion. Sabo v. Commonwealth, 38 Va. App. 63, 79,
561 S.E.2d 761, 769 (2002). Furthermore, "[a] party who relies
upon an exception to an exclusionary rule of evidence bears the
burden of establishing admissibility. 'One seeking to have
hearsay declarations of a witness admitted as an exception to the
general rule must clearly show that they are within the
exception.'" Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386
(1984) (quoting Skillern and Sons, Inc. v. Rosen, 359 S.W.2d 298,
301 (Tex. 1962)).
On appeal, Gent contends the trial court erred in admitting
statements made by the victim, Myrtle Petit, to her neighbor,
Betty Mullins, on October 1, 1997 and November 29, 1997. 1
1
The Commonwealth contends that Gent waived any error
concerning the testimony as to the October 1, 1997 statement
because he introduced evidence of the same character on his own
behalf when cross-examining Deputy Ronnie Large. Saunders v.
Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970)
("[W]here an accused unsuccessfully objects to evidence which he
considers improper and then on his own behalf introduces
evidence of the same character, he thereby waives his objection,
and we cannot reverse for the alleged error."). However, we do
not think that the rule applies here. Deputy Large did testify
to statements made to him by Petit concerning some of the same
facts contained in Mullins' testimony to which Gent objected.
The record demonstrates, however, that Deputy Large volunteered
this information on cross-examination and that it was not
intentionally solicited by Gent. See Washington-Va. Ry. Co. v.
Deahl, 126 Va. 141, 151, 100 S.E. 840, 844 (1919) ("The general
rule here invoked is well settled, but in order to be applicable
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Specifically, Gent argues the trial court erred in finding the
statements were admissible pursuant to the hearsay exception
permitting testimony relating excited utterances. We disagree.
During Gent's trial, Mullins testified that on October 1,
1997, Petit appeared at her door during the early morning hours.
Petit held her hand to her face, "like she didn't want anybody to
see and she was acting real nervous." Mullins then asked Petit to
take her to Petit's home. When they arrived, Petit began crying
and was "very upset." She then moved her hand, and Mullins could
see that the side of her face was bruised. Mullins asked Petit
what had happened. Petit told her that "somewhere in the middle
of the night somebody had broke in her house and robbed her" and
that they knocked her down, choked her, and hit her in the face.
Mullins asked Petit "how much . . . what they got," and Petit
stated that the man had stolen $1,300 from her chest of drawers.
Mullins then contacted the police.
Mullins further testified that, at approximately 2:00 a.m.,
on November 29, 1997, Petit knocked on her door again. Mullins
observed that Petit was crying and upset. Mullins asked Petit
what had happened and Petit told her she had been robbed again.
Petit and Mullins immediately returned to Petit's home. Petit
remained upset and took Mullins into her bedroom. She told
there must be some reasonable and just foundation for holding
that there was in fact a waiver. An application of the rule in
this case would be a distortion of its purpose and a sacrifice
of the principle upon which it rests.").
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Mullins "this time he had a pipe," and "he said he would kill [me]
if [I] did not give him the money." Petit stated that the man was
wearing "an orange jumpsuit and a black ski mask" and that she had
waited ten minutes after the robber had left before walking to
Mullins' home. Mullins then called the police once again.
Petit died before trial, and the Commonwealth offered her
statements recited above through Mullins. The trial court
admitted the statements under the "excited utterance" exception to
the hearsay rule.
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. "There is no fixed rule by
which the question whether the statement is
admissible as an excited utterance can be
decided. Resolution of the issue depends
upon the circumstances of each case."
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.
Goins v. Commonwealth, 251 Va. 442, 460, 470 S.E.2d 114, 126
(1996) (quoting Clark v. Commonwealth, 235 Va. 287, 292, 367
S.E.2d 483, 485 (1988)) (other citations omitted).
"[T]he [']startling event['] does not have to be the actual
crime itself, but rather may be a related occurrence that causes
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such a reaction." Esser v. Commonwealth, 38 Va. App. 520, 526,
566 S.E.2d 876, 879 (2002). Further,
[a]lthough not controlling, the lapse of
time between the "startling event" and a
declaration offered in evidence is relevant
to a determination whether the declaration
was spontaneous and instinctive, or
premeditated and deliberative. It is also
relevant to consider whether the declarant
made an exclamation impulsively on his own
initiative, or a statement in response to a
question.
Doe, 227 Va. at 471-72, 318 S.E.2d at 385 (citations omitted).
"The ultimate test is whether it appears that 'the facts [were]
talking through the party or . . . the party [was] talking about
the facts.'" Id. at 472, 318 S.E.2d at 385 (quoting Upton v.
Commonwealth, 172 Va. 654, 659, 2 S.E.2d 337, 339 (1939)).
However,
[t]his often quoted phrase may capture the
spirit of the exception but is not
particularly helpful to the resolution of
specific cases since the issue always
involves the admission of a party's
statement about what happened. Facts do not
speak statements admissible in court, only
people do, and they may speak truthfully for
a variety of reasons. The issue is whether
a person's statement about the facts is the
product of a startling event such that it
excludes the possibility that it is a
fabrication.
Martin v. Commonwealth, 4 Va. App. 438, 441, 358 S.E.2d 415, 417
(1987) (citation omitted).
Here, the evidence established that Petit made the statements
to Mullins, on both occasions, within minutes after the robbery or
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within minutes after the "startling event" of returning to her
home, where the robberies had occurred. Further, Petit was
visibly upset and shaken on both occasions and, with the exception
of Mullins' testimony that Petit told her $1,300 was taken from
her dresser in response to specific questioning from Mullins, no
evidence in the record demonstrates that Petit's statements were
merely a "narrative of a past" event. Portsmouth Transit Company
v. Brickhouse, Adm'r, 200 Va. 844, 848, 108 S.E.2d 385, 387
(1959). Instead, as testified to by Mullins, the statements
appear to have been made as a stream of consciousness flowing from
Petit after being asked what had happened to cause her to be upset
and/or after returning to her home, where the robberies had
recently occurred. Accordingly, on this record, we cannot find
that the trial court abused its discretion, as it appears that
Petit indeed made the statements impulsively and without
deliberation and that she did so without prompting or suggestion
from Mullins. See Martin, 4 Va. App. at 442, 358 S.E.2d at 418
("The natural reaction of any person arriving to aid one exposed
to a startling event is to inquire, 'What happened?' . . . If the
question or questioner suggested or influenced the response, then
the declaration may lack the necessary reliability to be
admitted."). 2
2
Because we find no error in the trial court's admission of
the statements, we do not address the Commonwealth's argument
pertaining to harmless error.
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Gent next contends that the trial court erred in excluding
statements made by Petit to her cousin, Marvin Craiger, and her
niece, Nancy Petit, just after she was released from the hospital.
Gent argues that the statements, concerning the identity of the
robber, fall within the dying declaration exception to the hearsay
rule and/or that they should be admitted because the "inherent
unreliability of hearsay is not present." Gent also contends the
evidence is exculpatory and, thus, its exclusion deprived him of
his constitutional right to present evidence in his own defense.
We once again disagree, and affirm the trial court's ruling.
We do not address Gent's contentions with regard to the dying
declaration exception to the hearsay rule and the exculpatory
nature of the evidence, as Gent failed to raise these issues
before the trial court at the time the evidence was offered and
the court made its ruling. Thus, Gent failed to properly preserve
the issues for purposes of appeal. See Rule 5A:18; see also Sabol
v. Commonwealth, 37 Va. App. 9, 20, 553 S.E.2d 533, 538 (2001)
("To preserve an issue for appeal, appellant must make a
contemporaneous objection to the court's ruling."); Harward v.
Commonwealth, 5 Va. App. 468, 473, 364 S.E.2d 511, 513 (1988)
(holding an objection made as to the admissibility of evidence is
timely only if raised when the questioned statement is made);
Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998).
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Further, we decline Gent's invitation to adopt a "catch-all"
exception to the hearsay rule. Here, outside the presence of the
jury, Craiger testified that after Petit arrived at Nancy's home,
after being released from the hospital, he asked Petit if she knew
"who done this to you, I said was it Jody Gent?" Craiger stated
she "shook her head like this," indicating "no," "dropped her
head," and mumbled that "it was a little boy," as she put her hand
out to the side, indicating "two to three feet." Nancy Petit
stated that Craiger "asked [Petit] if she remembered him and she
said 'well I reckon I do.'" Craiger asked, "who did this to you?"
"Was it Jody Gent?" Nancy Petit stated that Petit "bowed her head
and shook it no" and mumbled that it was a "little guy."
Gent contends that this Court should recognize a "residual
hearsay exception," like that found in the Federal Rules of
Evidence and, thus, find that the trial court erred in refusing to
permit this evidence based upon the Commonwealth's hearsay
objection. See Fed. R. Evid. 807. 3 However, we find that the
3
Federal Rule of Evidence 807 provides as follows:
A statement not specifically covered by Rule
803 or 804 but having equivalent
circumstantial guarantees of
trustworthiness, is not excluded by the
hearsay rule, if the court determines that
(A) the statement is offered as evidence of
a material fact; (B) the statement is more
probative on the point for which it is
offered than any other evidence which the
proponent can procure through reasonable
efforts; and (C) the general purposes of
these rules and the interests of justice
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trial court here properly refused to apply federal law to a purely
state prosecution. See Chandler v. Commonwealth, 249 Va. 270,
279, 455 S.E.2d 219, 225 (1995).
In Virginia, we have not adopted the federal rules of
evidence, nor have we chosen to codify our rules of evidence.
Hanson v. Commonwealth, 14 Va. App. 173, 185, 416 S.E.2d 14, 21
(1992). We have however, recognized what might be referred to as
an ad hoc form of the residual hearsay exception, by permitting
the admission of certain evidence possessing a very high indicia
of reliability, such as a date on a postmark, or a dollar figure
on a price tag. See id. ("[A]lthough a postmark is within the
traditional definition of hearsay, it is admissible as an
exception to the hearsay rule when used to prove the date on which
the postal service affixed its postmark in the regular course of
business."); see also Robinson v. Commonwealth, 258 Va. 3, 10, 516
S.E.2d 475, 479 (1999) (creating an exception to the hearsay rule
in shoplifting cases permitting the admission into evidence of
will best be served by admission of the
statement into evidence. However, a
statement may not be admitted under this
exception unless the proponent of it makes
known to the adverse party sufficiently in
advance of the trial or hearing to provide
the adverse party with a fair opportunity to
prepare to meet it, the proponent's
intention to offer the statement and the
particulars of it, including the name and
address of the declarant.
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price tags regularly affixed to items of personalty offered for
sale). Nevertheless, we have not chosen to recognize an exception
to the hearsay rule that would permit the admission of any and all
"relevant" statements, which may carry some indicia of
reliability. Instead, we have created only limited exceptions in
cases where the circumstances prove that "'the inherent
unreliability of hearsay is not present.'" Id. (quoting State v.
White, 437 A.2d 145, 148 (Conn. Super. Ct. 1981)). Such is not
the case here, and we decline to extend these limited exceptions
beyond their intended reach. Thus, we find no abuse of discretion
on the part of the trial court in refusing to admit Craiger and
Nancy Petit's testimony concerning their conversation with Petit
about the identity of the robber.
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
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