Michael Ervin Travers v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick, and Senior Judge Duff
Argued at Alexandria, Virginia
MICHAEL ERVIN TRAVERS
v. Record No. 1970-94-4 MEMORANDUM OPINION *
BY JUDGE CHARLES H. DUFF
COMMONWEALTH OF VIRGINIA MARCH 5, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Rosemarie Annunziata, Judge
Andrew P. Wright (Briglia & Wright, on
brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Michael Travers (appellant) appeals his conviction for
murder in the first degree. He argues that the trial court erred
in excluding his statements to the police and the records of
certain criminal convictions of the decedent, Gerald Moore. We
find no reversible error in the trial court's rulings and affirm
appellant's conviction.
I.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Upon returning home on the night of February 5, 1994,
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
appellant's wife found the dead body of Gerald Moore on the sofa
in the apartment she shared with appellant and their two
children. Moore had sustained fourteen stab wounds, three of
them fatal. Two of the wounds punctured his heart. Moore's
blood alcohol content was .40 percent. A toxicologist testified
that such an amount of alcohol in Moore's bloodstream would have
induced a state approaching "general paralysis."
At about 10:00 p.m. that night, appellant called his father
and said he had stabbed a man. Appellant appeared at his
father's house shortly thereafter. When police officers arrested
appellant there later, they found blood on his clothes, on his
hands, and on a knife sheath on his belt.
Appellant testified that he and Moore met for the first time
at a convenience store in the early evening of February 5, 1994.
Appellant and Moore went to appellant's apartment for the
purpose of drinking alcohol. Appellant testified that at the
apartment he and Moore had argued, and that Moore attacked him.
Appellant said he remembered stabbing Moore with a knife once in
self-defense.
II.
Before appellant testified in his behalf and had his
credibility challenged on cross-examination, he asked the trial
court to permit him to introduce statements he made to the police
following his arrest. The statements contained admissions that
appellant had stabbed Moore, but that he had acted in self-
-2-
defense. The court ruled the statements hearsay and excluded
them.
"'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." Hamm v.
Commonwealth, 16 Va. App. 150, 155, 428, S.E.2d 517, 521 (1993).
Appellant sought to introduce his statements to prove that he
acted in self-defense. Thus, appellant offered the statements
for the truth of the matters asserted therein, and the statements
were hearsay.
"As a general rule, hearsay evidence is incompetent and
inadmissible. . . . The 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). On appeal, appellant does not assert
that any exception to the hearsay rule permitted the introduction
of his statements during his case in chief. Moreover, "when
proffered by the party who made the statement, such a statement
is generally not admissible." King v. Commonwealth, 18 Va. App.
57, 59, 441 S.E.2d 704, 705 (1994). In the absence of an
applicable exception to the hearsay rule, the trial judge did not
err in refusing to permit appellant to introduce the statements. 1
1
We find no merit to appellant's argument that he should
have been permitted to introduce the statements at trial because
the Commonwealth did so at the preliminary hearing. The
Commonwealth is not required to introduce the same evidence at
trial as at the preliminary hearing, nor is the Commonwealth
barred at trial from objecting to such evidence.
-3-
After the parties had rested and while the trial court was
discussing jury instructions with counsel, appellant's attorney
requested leave to reopen his case to permit appellant to testify
about his statements to the police. Although counsel previously
had declined the opportunity to present rebuttal evidence, she
contended that the evidence was necessary to support her planned
closing argument that appellant asserted self-defense "early on."
The trial court refused appellant's request.
"A defendant may introduce his or her own prior consistent
statements when the prosecution suggests that the defendant has a
motive to falsify, alleges that the defendant's testimony is a
recent fabrication, or attempts to impeach the defendant with a
prior inconsistent statement." Id. at 59, 441 S.E.2d at 705. To
be admissible, however, the prior statements must have been "made
at a time when their ultimate effect and operation could not have
been foreseen." Skipper v. Commonwealth, 195 Va. 870, 876, 80
S.E.2d 401, 405 (1954). See also Faison v. Hudson, 243 Va. 397,
404, 417 S.E.2d 305, 309 (1992).
The decision whether to permit the introduction of further
testimony after both parties have rested their cases is addressed
to the sound discretion of the trial court and will not be
reversed on appeal absent an abuse of that discretion. Williams
v. Commonwealth, 4 Va. App. 53, 77, 354 S.E.2d 79, 92 (1987). We
cannot say the trial court abused its discretion in denying
appellant's motion to reopen his case.
-4-
III.
The trial judge refused to admit records of Moore's Maryland
and Florida convictions because the proffered documents did not
comply with Code § 8.01-389. Code § 8.01-389(A)(1) provides:
The records of any judicial proceeding and any other official
record of any court of another state or country, or of the United
States, shall be received as prima facie evidence provided that
such records are authenticated by the clerk of the court where
preserved to be a true record, and similarly certified by a judge
of that court.
For purposes of Code § 8.01-389, "the terms 'authenticated' and
'certified' are basically synonymous . . . . Authentication is
merely the process of showing that a document is genuine and that
it is what its proponent claims it to be." Owens v.
Commonwealth, 10 Va. App. 309, 311, 391 S.E.2d 605, 607 (1990).
The Maryland and Florida conviction orders were not
certified by a judge. Thus, the orders did not comply with the
requirements of Code § 8.01-389, and the trial judge did not err
in excluding them.
The trial court also excluded the Virginia record of Moore's
conviction of disorderly conduct arising from an incident on
November 16, 1993. The court admitted, however, the testimony of
Officer Connor about Moore's conduct that resulted in the
disorderly conduct charge.
Even if the Virginia disorderly conduct conviction should
-5-
have been admitted, the error was harmless in light of Officer
Connor's testimony about the event. Connor testified that on
November 16, 1993, he observed Moore swing a piece of wood like a
baseball bat in the direction of several individuals fleeing from
a convenience store parking lot. Moore was intoxicated and
angry. Connor's testimony illustrated Moore's propensity for
violent or turbulent behavior more graphically than the bare
conviction order possibly could. In addition, the trial court
did admit orders reflecting Moore's thirteen convictions for
public drunkenness. Because it appears from the record that any
conceivable error did not affect the verdict, see Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc), we affirm appellant's conviction.
Affirmed.
-6-