Jackson v. Commonwealth

Benton, J.,

concurring.

I join in Part I of the majority opinion’s disposition. I do not join in Part II because I would hold that the trial judge erred in refusing to strike the officer’s testimony. Although I believe that the trial judge erred by refusing to strike the officer’s nonresponsive and hearsay testimony, I also believe the error was harmless and, thus, join in affirming the conviction.

Jackson’s attorney did indeed ask a series of questions relating to the manner in which appellant’s photograph was selected. The officer’s response, however, went beyond merely answering how he selected photographs based upon descriptions of the suspects. In recounting events which occurred in Washington, D.C. two weeks after the robbery in Manassas, Virginia, the officer’s answer was unrelated and, thus, nonresponsive to defense counsel’s question.

The officer’s response contained hearsay as well. “Hearsay evidence is defined as a spoken or written out-of-court declaration or nonverbal assertion offered in court to prove the truth of the matter asserted therein.” Arnold v. Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987).

[Hearsay] evidence has been defined as evidence which derives its value, not solely from the credit to be given the *562witness on the stand, but in part from the veracity and competency of some other person. It is primarily testimony which consists in a narration by one person of matters told him by another.

Williams v. Morris, 200 Va. 413, 416-17, 105 S.E.2d 829, 832 (1958). The officer testified about statements made by another police officer who was told statements made by yet another person. Thus, the officer’s testimony impermissibly detailed facts related to him out of court by a declarant, including statements made to the declarant by another person. See Stevenson v. Commonwealth, 218 Va. 462, 237 S.E.2d 779 (1977); Williams v. Commonwealth, 213 Va. 45, 189 S.E.2d 378 (1972).

I would hold, however, that the “error was harmless beyond a reasonable doubt, because the circumstantial evidence adduced [at trial] . . . was overwhelming without the . . . declarations.” Goins v. Commonwealth, 218 Va. 285, 288, 237 S.E.2d 136, 138 (1977). The evidence proved that the victim and the robber were “face to face” on a “sunshiny day.” When the victim was shown a photographic array of six photographs, she immediately pointed to Jackson’s photograph as the robber. The victim also identified him at trial. In addition, the two witnesses to the robbery recognized Jackson as the man they saw drive away in the victim’s car immediately after the robbery.

Jackson does not contend that the testimony of the victim and the two witnesses was improperly admitted. Their unrebutted identification testimony overwhelmingly proved Jackson’s identity as the robber. The police officer’s testimony only related events that occurred two weeks after the robbery and did not place Jackson at the site of the robbery. Thus, the error in failing to strike the officer’s testimony was harmless.

For these reasons, I would also affirm the conviction.