Braxton v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia

KENNETH LAMONT BRAXTON
OPINION BY
v. Record No. 1344-96-4 JUDGE LARRY G. ELDER
DECEMBER 16, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
William D. Hamblen, Judge
Robert F. Horan, III (Ronald Wayne Fahy;
Horan & Fisher, on briefs), for appellant.

Michael T. Judge, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Kenneth Lamont Braxton ("appellant") appeals his convictions

of first degree murder and petit larceny. He contends the trial

court erred when it (1) admitted as an "excited utterance" the

hearsay statement of the victim's three-year-old son ("child")

and (2) ruled that the child's statement and evidence regarding

his condition following the discovery of the victim's body were

relevant. For the reasons that follow, we affirm.

I.

FACTS

In early 1995, Lorann Cox ("victim") was working as an

undercover drug informant for the Manassas City Police

Department. On February 3, 1995, she executed a controlled buy

*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
of cocaine from appellant. On June 3, the Manassas police

obtained a warrant for appellant's arrest based upon the

information provided by the victim. This warrant was executed on

June 7 and a preliminary hearing was scheduled for July 6. A

subpoena was issued ordering the victim to appear and testify at

the preliminary hearing.

On June 30, appellant was riding in a car near the victim's

home with his second cousin, Yolanda Skinner. Appellant told

Skinner "about some charge that [the victim] had on him" and

stated that "he would kill [the victim], if he could." Appellant

pointed out the victim's house to Skinner and said, "that's where

the bitch lives." During this conversation, appellant asked

Skinner if she knew where he could obtain a gun. Skinner replied

that she did not know anybody who had a gun.
On the evening of July 2, the victim and her three year old

visited her parents at their home. The victim's father noticed

that the child's "nose [was] running" and made arrangements with

the victim to care for the child the following day. The victim's

father and the victim, who worked for the same employer but at

different times of the day, arranged to meet at the end of the

father's shift so that the father could take the child home and

care for him while the victim worked. After making these

arrangements, the victim left her parents' house around

10:30 p.m. to return home for the evening.

The next day, July 3, the victim did not meet her father at

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the appointed time. The victim's father attempted to contact her

by phone and by pager, but the victim did not respond. The

victim's father then drove to the victim's house and arrived

there at about 2:35 p.m. He tried the front door, discovered

that it was unlocked, and walked into the victim's house. After

searching for six or seven minutes, he discovered his daughter's

body lying face down behind a love seat in the living room. He

also found the child, who was unharmed, next to the victim's

body. The victim's father picked up the child and removed him

from the scene. Four minutes later, the victim's father used a

phone in a neighboring house to call "911" and then the victim's

brother.
Both an ambulance and the police arrived at the scene a

short while later. The victim's house was secured, and

investigators collected evidence from the scene. A metal cooking

pot with a large dent in it was found a few feet from the

victim's body. A plastic container that dispensed body lotion

was found next to the victim's sink. A bloody fingerprint

matching appellant's right index finger was found on top of the

dispenser's pumping mechanism. A DNA analysis of the blood in

which the fingerprint was formed indicated a high probability

that it was the victim's.

An autopsy of the victim revealed that she was stabbed

nineteen times in the neck with a sharp object. The medical

examiner also found "a number of bruises about the [victim's]

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body and face" and a swollen area on the back of her head that

were consistent with "a blow to the head with a large object such

as a pot." The victim's death was attributed to the stab wounds

to her neck, which caused "profuse bleeding."

Ronald Wortmann, an inmate in the Prince William County

Adult Detention Center, informed authorities that appellant

confessed to him that he murdered the victim. Wortmann later

testified that he asked appellant "what he was in here for" and

appellant told him that he had been charged with the victim's

murder. Appellant then told Wortmann that "[he] did the bitch."

Appellant told Wortmann he had learned that the victim was

working undercover for the Manassas City Police Department by

following her when she met with officers at the police

department. When Wortmann asked him why he had murdered the

victim, appellant responded, "she was going to tell on all of

us." Appellant also told Wortmann that "a baby" was at the scene

when he murdered the victim.
Appellant was charged with the capital murder and robbery of

the victim. A jury convicted him of first degree murder and

petit larceny.

The scope of this appeal is limited to the admissibility of

an out-of-court statement made by the child after he was

discovered at the crime scene and the evidence regarding his

condition during this time. The following is a summary of the

contested evidence.

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 At trial, the victim's father testified that when he found

the child next to the victim's body, "it looked like [the child]

had been sleeping across her body . . . ." After he picked up

the child and carried him out of the house, the victim's father

noticed that "[the child] had dried mucous down the front of his

nose from the cold" and that he was wearing "the same diaper that

he had on the night before." He also noticed that the child was

wearing a t-shirt that had "some blood on it" and that the child

"had kind of a glazed look in his eyes" and "was in a dazed

state." Appellant objected to all of this evidence on the ground

that it was not relevant, and the trial court overruled his

objections.
Later in the trial, the victim's brother testified that the

victim's father gave the child to him outside the victim's home.

The victim's brother testified that he spoke with a police

officer for about five minutes and then took the child to his

home "to get him away from everything." The victim's brother

noticed that the child "was not himself" and that he "was in

shock, kind of dazed." The victim's brother also observed blood

on the child's shirt and identified in court the blood-stained

shirt that the child had been wearing. The victim's brother

testified that his wife washed the shirt before delivering it to

the police. Appellant's counsel objected to all of this evidence

on the ground that it was irrelevant, and the trial court again

overruled his objections.

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 The victim's sister-in-law testified that, on July 3, the

victim's brother brought the child to their house from the crime

scene. She testified that the child "was quiet [and] subdued"

and that "there was some blood on his shirt." She testified that

she removed the blood-stained shirt from the child and eventually

washed it. Appellant's counsel objected to all of this evidence

on the ground that it was not relevant. The trial court

overruled his objections. The victim's sister-in-law also

testified that the child made statements about the victim "every

ten to fifteen minutes."
Kathleen Burch testified that she arrived at the residence

of the victim's sister-in-law on July 3 after the child was

already there. She testified that the child indicated to her

that he wanted to "go out and play" and that she took him

outside. When asked to describe the child's "demeanor and

appearance," Burch testified that the child "was very quiet and

just dazed." Appellant's counsel did not object to this

testimony.

The Commonwealth then indicated to the trial court that it

intended to offer a statement that the child made to Burch while

the two were outside. The trial court heard arguments regarding

the admissibility of this statement outside the presence of the

jury. The Commonwealth proffered that Burch would testify that

"the child unsolicited told her the man -- hit[ing] his head like

this (indicating) -- Mommy on the head." Appellant's counsel

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argued that the statement was inadmissible on three grounds:

(1) it was hearsay not within the excited utterance exception;

(2) it was cumulative of other evidence already admitted; and

(3) it was irrelevant.

The trial court ruled that the child's statement was

relevant. It reasoned that the statement was probative of "how

that contusion came to be on [the victim's] head" and of "the

gender of the person who struck her." The trial court then ruled

that the statement, although hearsay, fell within the excited

utterance exception to the hearsay rule. It reasoned:
The age of the child, I think, is a
substantial factor. And the evidence in this
case establishes at least this. That while
it's not clear what period of time elapsed
between the time that [the victim] was
injured or killed until the time he saw [the
victim's father], the evidence does establish
fairly clearly that from the time [the
victim's father] came and picked him up out
of there he was passed off in quick
succession from [the victim's father] to [the
victim's brother] . . . to [the victim's
sister-in-law] and then to [Burch], and that
he was variously described as quiet, dazed,
those sorts of things, which is to say . . .
in my view that [the child was] under the
influence of the events still . . . .

Burch then testified that the child told her "[t]hat man

(indicating) mommy on the head." The record established that

Burch placed her hand to her head "in a striking manner."

Later in the trial, Officer S. C. Newsome of the Prince

William County Police Department testified that, on March 6,

1996, the victim's sister-in-law gave him the blood-stained shirt

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worn by the child on July 3, 1995. He identified the shirt in

court, and the Commonwealth offered the shirt into evidence.

Appellant's counsel objected to the admission of the shirt "on a

relevance basis," and the trial court overruled his objection.

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 II.

EXCITED UTTERANCE

Appellant contends the trial court erred when it concluded

that the child's hearsay statement to Burch fell within the

"excited utterance" exception to the hearsay rule. We disagree.

"As a general rule, hearsay evidence is incompetent and

inadmissible," and "[t]he party seeking to rely upon an exception

to the hearsay rule has the burden of establishing

admissibility." Neal v. Commonwealth, 15 Va. App. 416, 420-21,

425 S.E.2d 521, 524 (1992).
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,

cert. denied, U.S. , 117 S. Ct. 222, 136 L.Ed.2d 154

(1996) (citations omitted).

Whether a hearsay statement is an excited utterance is not

determined solely by the lapse of time between the "startling

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event" and the declaration. See Doe v. Thomas, 227 Va. 466,

471-72, 318 S.E.2d 382, 385 (1984). Instead, the lapse of time

is but one circumstance to consider when determining whether the

declarant's statement was "'prompted by a startling event, and

not the product of premeditation, reflection, or design.'" See

Martin v. Commonwealth, 4 Va. App. 438, 441, 358 S.E.2d 415, 417

(1987) (citation omitted). "[I]n the case of statements made by

young children, the element of trustworthiness underscoring the

spontaneous and excited utterance exception finds its source

primarily in the child's lack of capacity to fabricate such a

story rather than the lack of time to fabricate." Walker v.

Commonwealth, 19 Va. App. 768, 773, 454 S.E.2d 737, 740 (1995)

(citing Martin, 4 Va. App. at 445, 358 S.E.2d at 418).

We hold that the trial court did not abuse its discretion

when it admitted the child's out-of-court statement to Burch

under the excited utterance exception to the hearsay rule. The

child's age, the evidence of his condition from the time he was

discovered at the crime scene until he made his statement, and

the circumstances of the making of the statement support the

trial court's conclusion that the child was speaking

spontaneously in response to a startling event of which he had

firsthand knowledge. The child was only three years old on the

date of the victim's murder. The evidence indicates that the

child observed the attack on his mother and was in her presence

as she subsequently bled to death. The child was alone with his

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mother's body from the time of the attack until the victim's

father found him around 2:35 p.m. on July 3. The child's shirt

was stained with blood. The child was passed from the victim's

father to the victim's brother to the victim's sister-in-law to

Burch in relatively quick succession. All of these persons

testified that the child appeared "in shock," "quiet," and

"dazed." The record indicates that the child made his statement

to Burch within an hour of being discovered by the victim's

father and that his statement was unsolicited. Although the

record does not establish how much time elapsed between the

victim's murder and the child's statement to Burch, the child's

limited capacity to fabricate and the evidence that he remained

visibly distressed to each person who handled him indicates that

his statement was sufficiently reliable to be admitted as an

excited utterance.
II.

RELEVANCE

Appellant contends the trial court erred when it concluded

that the child's statement and the evidence regarding his

condition after the victim's body was discovered were relevant.

He specifically challenges the admissibility of the child's

statement, the evidence that he was wearing a blood-stained shirt

and an unchanged diaper, and the evidence that he had dried

mucous around his nose and was in a dazed state. 1 He argues that
1
Appellant also challenges the admissibility of a portion of
Ronald Wortmann's testimony. At trial, Ronald Wortmann testified

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the prejudicial effect of this evidence outweighed its probative

value. We disagree.

"The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion." Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).

"Evidence is admissible if it is both relevant and material."

Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436,

441 (1987). "Evidence is relevant if it has any logical

tendency, however slight, to establish a fact at issue in the

case." Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d

675, 678 (1993). "'Upon finding that certain evidence is

relevant, the trial court is then required to employ a balancing

test to determine whether the prejudicial effect of the evidence

sought to be admitted is greater than its probative value.'" Id.

(quoting Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d

197, 203 (1988)). On appeal, a trial judge's ruling that any

relevant evidence outweighs any incidental prejudice will be

reversed only on a clear showing of an abuse of discretion. See

Ferrell v. Commonwealth, 11 Va. App. 380, 390, 399 S.E.2d 614,

620 (1990).

that appellant stated that he saw the child when he murdered the
victim and that he contemplated killing the child. Appellant
contends that this testimony was also irrelevant and erroneously
admitted into evidence. However, appellant failed to raise this
issue in his petition for appeal. Rule 5A:12(c) bars us from
considering the merits of this argument.

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 We hold that the trial court did not abuse its discretion

when it concluded that the evidence challenged by appellant was

relevant and that the prejudice did not outweigh its probative

value. The child's statement was relevant to the identity of the

murderer and the causation of the victim's injuries. The child's

statement provided the only direct evidence in the record

regarding the gender of the victim's assailant. In addition, the

child's statement that he saw a man strike his mother on the head

tended to establish that the contusion on the victim's head was

caused by a blow from her assailant rather than from striking the

ground when she fell to the floor.
The evidence regarding the child's condition after he was

discovered at the crime scene by the victim's father was relevant

to the trustworthiness of his out-of-court statement to Burch.

Although the child's statement passed the threshold test of

admissibility as an excited utterance, the ultimate credibility

and weight of this statement were questions for the jury. See
Litchford v. Hancock, 232 Va. 496, 499, 352 S.E.2d 335, 337

(1987). Evidence that tends to establish the credibility of a

witness or the reliability of evidence is relevant and

admissible. The evidence regarding the mucous on the child's

face and the fact that he was wearing "the diaper that he had on

the night before" tended to prove the length of time between the

"startling event" he observed and his statement. The evidence

that he was wearing a blood-stained shirt and that he appeared

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dazed was relevant to prove that he was still under the influence

of witnessing his mother's murder at the time of his statement.

Furthermore, based on our review of the record, we cannot say the

trial court abused its discretion when it concluded that the

incidental prejudicial effect did not outweigh the probative

value of the child's statement and the evidence regarding his

condition.

For the foregoing reasons, we affirm the convictions of

first degree murder and petit larceny.

Affirmed.

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