Garcia v. Commonwealth

Coleman, J.,

concurring in part and dissenting in part.

I concur with the majority’s holding that the defendant may object to inadmissible evidence, even though it is testimony given *579in response to a question asked by his own counsel of a witness on cross-examination. I respectfully disagree, however, with the majority’s holding that the witness’s statement was hearsay. Therefore, I dissent from the majority’s holding that the evidence was inadmissible and that the conviction should be reversed.

On cross-examination, defense counsel questioned the witness concerning the fact that he had not called the police to report a prior incident between the victim and defendant. The exchange between defense counsel and the witness was as follows:

Q. But you yourself, you never reported this to the police or obtained a number for the police or filed a complaint; is that correct?
A. No.
Q. Now when the defendant was charged, that’s when you came forward with this story; is that correct?
A. I didn’t call the police — it wasn’t that I didn’t have the number, but I consulted with [the victim] —

Over defense counsel’s objection, the witness was allowed to answer the question.

THE WITNESS: I talked to [the victim] and he said there was a problem among the brothers and everything and I think he was afraid that he was going to kill him if he did anything about it.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Tickel v. Commonwealth, 11 Va. App. 558, 564, 400 S.E.2d 534, 538 (1991). A statement offered for any other purpose is not hearsay and is, therefore, governed by the other rules of admissibility. See Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981).

The clear import of defense counsel’s cross-examination suggested that because the witness had not reported the prior incident to the police, the witness may have fabricated its occurrence. The witness’s response was not offered to prove the truth of what the victim had said, but only to explain why the witness had not *580called the police.

The hearsay rule does not operate to exclude evidence of a statement, request, or message offered for the mere purpose of explaining or throwing light on the conduct of the person to whom it was made. The evidence was admitted not for the purpose of showing the [truth or falsity of the statement] but for the purpose of showing the reason for the [witness’s] action.

Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960).

The purpose of the statement was to “throw [] light on the conduct of the [witness].” Id. Because the evidence was not hearsay, in my opinion, and because it was relevant to explain the witness’s conduct, the trial judge did not err and the ruling is not a basis for reversing the murder and firearms convictions.