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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