COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Baker
Argued at Norfolk, Virginia
ANTOINE LOPEZ LLOYD
MEMORANDUM OPINION * BY
v. Record No. 2350-97-1 JUDGE NELSON T. OVERTON
NOVEMBER 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
L. Kim Van Horn (Overman, Cowardin &
Martin, P.L.C., on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Antoine Lopez Lloyd (defendant) appeals his convictions for
attempted robbery, maiming, and two counts of the use of a
firearm in the commission of a felony. On appeal, he contends
the trial court erroneously admitted the statement of a
codefendant into evidence. Because we hold this ascription of
error was not preserved for appeal, we affirm.
The parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedental
value, we recite only those facts necessary to disposition of the
appeal.
Michael Eugene Williams, an eyewitness to the incident, told
police that defendant and Julius Debraux assaulted Anthony
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Sterling, robbed him and shot him as he fled from his attackers.
The Commonwealth offered Williams's statement into evidence
under the declaration against penal interest exception to the
hearsay rule. Defendant's counsel objected on the grounds that
Randolph v. Commonwealth, 24 Va. App. 345, 355, 482 S.E.2d 101,
105 (1997), required the Commonwealth to show the declarant,
Williams, was unavailable. 1
The trial court noted that Williams was in jail awaiting
trial for offenses arising from the same incident and, therefore,
he was unavailable. See Raia v. Commonwealth, 23 Va. App. 546,
550, 478 S.E.2d 328, 330 (1996) (holding that because a
codefendant cannot be forced to incriminate himself in violation
of the Fifth Amendment, he was unavailable for purposes of the
hearsay exception). When Williams's statement was read into
evidence by Detective Springfield, defendant's counsel made no
further objection or argument.
Defendant's counsel concedes on appeal that Williams was
unavailable. She now asserts that Williams's statement did not
qualify under the exception because the statement was not against
his penal interest. This is not the same argument advanced in
the trial court. "No ruling of the trial court . . . will be
1
The "penal interest" exception to the hearsay rule contains
four requirements: (1) the declarant must be unavailable to
testify, (2) the statement must be against the declarant's
interest at the time it was made, (3) the declarant must be aware
that it is against his interest and (4) it must be reliable. See
Randolph, 24 Va. App. at 355, 482 S.E.2d at 105-06.
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considered as a basis for reversal unless the objection was
stated together with the grounds therefor at the time of the
ruling . . . ." Rule 5A:18. See Jacques v. Commonwealth, 12 Va.
App. 591, 593, 405 S.E.2d 630, 631 (1991). Because defendant's
counsel did not make such objection in the trial court, the issue
is barred from our consideration on appeal.
Because we find that the statement was admissible and,
combined with the rest of the Commonwealth's evidence, it was
sufficient to support the convictions, we affirm. See Code
§ 8.01-680.
Affirmed.
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