William "Pig" Wooten, etc. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
WILLIAM "PIG" WOOTEN, S/K/A
WILLIAM R. WOOTEN
MEMORANDUM OPINION * BY
v. Record No. 1740-95-1 JUDGE RICHARD S. BRAY
APRIL 8, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
G. Curtis Overman, Jr. (Overman, Cowardin &
Martin, PLC, on brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
William R. Wooten (defendant) was convicted in a bench trial
of two counts of distributing cocaine. On appeal, he complains
that the trial court erroneously (1) denied his motion for
mistrial arising from contact between the prosecutor and a
sequestered witness, (2) admitted the hearsay testimony of a
police evidence custodian, and (3) found the evidence sufficient
to support the convictions. We disagree and affirm the decisions
of the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
MOTION FOR MISTRIAL
The "purpose of excluding the witnesses from the courtroom
is . . . to deprive a later witness of the opportunity of shaping
his testimony to correspond to that of an earlier one."
Huddleston v. Commonwealth, 191 Va. 400, 405, 61 S.E.2d 276, 279
(1950). "A trial court has discretion to decide whether a
witness who violates an exclusion order should be prevented from
testifying. Factors to be considered include whether prejudice
will result to the defendant and whether the violation of the
rule resulted from intentional impropriety." Jury v.
Commonwealth, 10 Va. App. 718, 721, 395 S.E.2d 213, 215 (1990).
Here, the prosecuting attorney proffered that she admonished
witness Barnwell that they were not permitted to discuss the case
during the luncheon recess. Barnwell confirmed this exchange and
further testified that he had remained alone in the Commonwealth
Attorney's office and discussed nothing related to the trial with
the prosecutor. This testimony was corroborated by the
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prosecutor's representations to the court.
Despite defendant's characterization of the
witness/prosecution contact as an "intentional impropriety,"
presumptively prejudicial to him, the trial court expressly found
neither willful misconduct nor attendant prejudice to defendant.
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We acknowledge that the Virginia Code of Professional
Responsibility, DR 9-101, instructs that an attorney should avoid
"[e]ven the [a]ppearance of [i]mpropriety"; however, the issue
before the Court relates only to the trial court's ruling on
defendant's mistrial motion.
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"On appeal the denial of a motion for a mistrial will not be
overruled unless there exists a manifest probability that the
denial of a mistrial was prejudicial." Harward v. Commonwealth,
5 Va. App. 468, 478, 364 S.E.2d 511, 516 (1988). Finding no
evidence of actual prejudice to defendant attributable to the
contact, we are unable to conclude that the trial court abused
its discretion in refusing to grant a mistrial.
CHAIN OF CUSTODY EVIDENCE
Well established rules of evidence permit the admission of a
"past recollection recorded . . . , over a hearsay objection,
[of] a witness with no independent recollection of an incident
. . . if certain requirements are met." James v. Commonwealth, 8
Va. App. 98, 102, 379 S.E.2d 378, 380 (1989). The witness may
testify directly from notes or reports if
. . . (1) the witness . . . had firsthand
knowledge of the event; (2) the written
statement . . . [is] an original memorandum
made at or near the time of the event, when
the witness had a clear and accurate memory
of it; (3) the witness . . . lack[s] a
present recollection of the event; and (4)
the witness . . . vouch[es] for the accuracy
of the written memorandum.
Id. at 102, 379 S.E.2d at 380-81 (citations omitted).
Here, Detective Miller testified that he had no independent
recollection of his involvement as custodian of the offending
drugs and was relying upon notes written by himself
contemporaneously recording his actions, thereby implicitly
vouching for the accuracy of such notes during trial. Thus,
Miller's evidence properly qualified as a past recollection
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recorded exception to hearsay.
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SUFFICIENCY OF THE EVIDENCE
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court, sitting
without a jury, is entitled to the same weight as a jury verdict
and will be disturbed only if plainly wrong or without evidence
to support it. See id. The credibility of a witness, the weight
accorded the testimony, and the inferences to be drawn from
proven facts are matters solely for the fact finder's
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989). The fact finder is not required to
believe a witness' entire testimony, but may accept a part as
creditable and reject the balance as implausible. See Pugliese
v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).
Evidence in support of defendant's conviction included
Barnwell's testimony that Barnwell gave defendant money in
exchange for drugs. The trial judge "accept[ed] that [Barnwell]
told . . . the truth about the transaction[s]" and concluded that
Barnwell's "testimony taken as a whole, along with the
corroboration of the testimony of [Officer Warren] is
sufficient." When such evidence is considered together with the
evidence of Warren's supervision of the purchases by Barnwell and
related testimony, the record provides ample support for the
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convictions.
Accordingly, we affirm the judgments of the trial court.
Affirmed.
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