Jerri Lynn Scearce v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Clements
Argued at Salem, Virginia
JERRI LYNN SCEARCE
OPINION BY
v. Record No. 0638-01-3 JUDGE JAMES W. BENTON, JR.
APRIL 9, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Jon Ian Davey for appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Randolph A. Beales,
Attorney General, on brief), for appellee.
The trial judge convicted Jerri Lynn Scearce of attempting
to procure a witness to commit perjury. On appeal, Scearce
contends the trial judge erred in ruling that the prosecutor
laid a proper foundation to admit into evidence a statement
under the past recollection recorded exception to the hearsay
rule. For the reasons that follow, we reverse the conviction
and remand the case for a new trial.
I.
The evidence proved that a police officer arrested
Scearce's fiancé, Henry Tickle, for driving on September 30,
2000 between 4:00 a.m. and 4:30 a.m., which was outside the
restricted hours of Tickle's driving permit. A grand jury later
indicted Scearce for attempting to induce or procure William
Wesley Hyler to commit perjury, in violation of Code §§ 18.2-26
and 18.2-436.
At Scearce's trial, which occurred February 2, 2001, Hyler
testified that Scearce asked him to testify in court that Tickle
had been asleep on Hyler's sofa at 4:00 a.m. Hyler testified
that he "can't remember the exact date or month" he talked to
Scearce and that he "believe[d] it was a Saturday or something
like that," but "ain't sure." Although Hyler testified that he
later told a police officer about Scearce's request, Hyler could
not recall, in relation to his conversation with the officer,
when he had spoken with Scearce.
The prosecutor informed the trial judge that immediately
prior to trial the police officer read to Hyler, who cannot
read, the statement the officer had transcribed on October 9,
2000, when Hyler spoke to the officer. Upon the prosecutor's
motion, the trial judge permitted the bailiff to leave the
courtroom with Hyler and refresh Hyler's memory again by reading
to Hyler the statement the police officer had written. When
questioned by the prosecutor after this attempt to refresh his
memory, Hyler testified that Scearce had come to his home "that
Saturday before last, on October the 9th." The prosecutor then
asked, "[t]he Saturday . . . before last, when you talked to the
police on October the 9th?" After Hyler responded, "yes sir,"
the prosecutor asked the judge to take "judicial notice of the
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calendar . . . that would have been Saturday before last, from
October the 9th, would have been September the 30th."
In response to further questions by the prosecutor, Hyler
testified twice that Scearce "didn't say what date" she wanted
him to say Tickle was asleep on his sofa. The prosecutor
requested leave to prove, as a past recollection recorded, the
statement Hyler gave to the officer and then asked Hyler the
following questions:
Q. [T]his is a statement that you gave to
Officer Pace on October the 9th? Is that
correct?
A. Yes sir.
Q. [W]as your memory better then or is it
better now?
A. My memory has never been real good.
Q. It's never been real good?
A. Yes sir. I'll be honest with you?
Q. Well, would you say it was better on
October the 9th, than it was today, about
what happened on September 30th?
A. No . . . I couldn't say.
Q. You couldn't say?
* * * * * * *
A. . . . like if somethin[g] happened today
. . . say somethin[g] happened on Monday
. . . if I had to go the next day and do
somethin[g], then I mean I can remember it.
Q. Well, but do you remember what [Scearce]
told you that day she came to your house?
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A. Yeah, she said she wanted me to go . . .
go to Court and tell that [Tickle] was sleep
on my couch.
Q. Okay. Do you remember what time she
said Henry would have been asleep on your
couch?
* * * * * * *
A. 4:00 A.M.
Q. 4:00 A.M. All right, but you don't
remember what date she said that?
A. No sir.
Q. But you told the police all of this on
October the 9th, is that correct?
A. Yes sir.
Q. And Officer Pace reduced your statement
to writing?
A. Yes sir.
Q. And he read it back to you? Is that
correct?
A. Yes sir.
Q. Well, was it correct at that time?
A. Yes sir.
On cross-examination, Hyler admitted that his memory was
such that he might not remember on Wednesday something that
happened on Monday. Scearce's counsel asked, "so if somebody
came to you and told you something, or suggested something, on
one day, then certainly nine days later, you may not remember
accurately, would you?" Hyler testified that he would "mostly
not" remember.
The prosecutor then recalled as a witness the officer who
transcribed Hyler's statement. The officer testified that he
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spoke to Hyler on October 9, that Hyler was "clear" in relaying
information on that day, that he wrote what Hyler told him, that
he read his writing to Hyler, and that Hyler signed it. The
officer was then permitted, over the hearsay objection of
Scearce's counsel, to read the statement into evidence. In
pertinent part, the statement was as follows:
"I give the following statement . . . on
10/9/2000 at 11:30 A.M., about a
conversation between myself and Jerri
Scearce. The Saturday before last, around
6:00 o'clock, to 6:30 P.M., Jerri Scearce,
and . . . . I went into my kitchen, where
Jerri asked me to go to Court with her, to
tell that Henry Tickle was asleep on my
couch, at around 4:00 o'clock A.M. that
morning. I told Jerri that I could not do
that. I won't lie for my own brother. I
ain't going to lie for anyone. I know
that's perjury, and that's wrong." Signed
by William Wesley Hyler . . . .
Scearce presented testimony by an agent of a bonding service
that she went to the magistrate's office prior to 5:00 p.m. on
September 30 and remained there until after 7:00 p.m. Tickle
also testified that he left the jail with Scearce after 7:00 p.m.
and remained with her until 8:00 p.m. Scearce testified that she
did not see Hyler on September 30 and that she was at the
magistrate's office between 5:00 p.m. and 7:00 p.m. She also
testified that she never asked Hyler to
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testify about Tickle and would not have done so because Tickle
and Hyler were antagonistic to each other.
The trial judge convicted Scearce of attempted subordination
of perjury. This appeal followed.
II.
"The general rule of past recollection recorded allows, over
a hearsay objection, a witness with no independent recollection
of an incident to testify directly from notes or reports if
certain requirements are met." James v. Commonwealth, 8 Va. App.
98, 102, 379 S.E.2d 378, 380 (1989). We have held that the
memorandum of past recollection recorded need not be made by the
witness whose memory is at issue.
"[T]he general rule [among courts
nationwide] is that it is not essential that
the record of past recollection shall have
been made by the witness, if he knows that
it is true as written. It is sufficient if
the memorandum was made by someone else but
has been examined by the witness and is
known by him to be correct."
Bailey v. Commonwealth, 20 Va. App. 236, 241, 456 S.E.2d 144, 146
(1995) (citation omitted).
Under the past recollection recorded exception, the
proponent of the statement also must establish each of the
following circumstances:
"(1) [T]he witness must have had firsthand
knowledge of the event, (2) the written
statement must be an original memorandum
made at or near the time of the event and
while the witness had a clear and accurate
memory of [the event], (3) the witness must
lack a present recollection of the event,
and (4) the witness must vouch for the
accuracy of the written memorandum."
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Scott v. Greater Richmond Transit Co., 241 Va. 300, 304, 402
S.E.2d 214, 217 (1991) (emphasis added and citation omitted).
Scearce challenged at trial and now on appeal whether on October
9 Hyler had a clear and accurate memory of the events contained
in the officer's memorandum and whether Hyler was able to vouch
for the accuracy of the memorandum. We address Scearce's first
contention that the evidence failed to prove Hyler's memory was
clear and accurate on October 9.
When accepting testimony under the past recollection
exception, the trial judge relies heavily on the witness' pledge
that the witness' memory was accurate at the time the memorandum
was written. The record clearly proves, however, that the
prosecutor was unable to establish that Hyler's memory was clear
and accurate on October 9, when the officer's memorandum
indicated that Hyler's statement was made. Hyler's own testimony
was that he could not say that his memory was accurate on that
date. Indeed, Hyler testified that his memory is not good more
than one or two days past the happening of an event. Based on
Hyler's own testimony, had Scearce approached him on September
30, he would "mostly not" remember the event on October 9 in
order to relay it accurately to the officers. Indeed, Hyler
specifically testified that he could not say his memory about the
events at issue was better on October 9 than it was at trial.
The officer's testimony that Hyler was "clear" in his statement
cannot supplant Hyler's own testimony about his deficient memory.
Thus, we hold that, although Hyler testified that the officer
wrote his statement, the evidence fails to establish that Hyler's
memory of his conversation with Scearce was clear and accurate
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when he spoke to the officer.
Furthermore, the trial judge's error in permitting the
officer to read the statement into evidence was not harmless.
The defense presented evidence that Hyler had a motive to
fabricate his testimony that Scearce wanted him to perjure
himself. Scearce presented evidence that Hyler, whom she had
dated twenty years ago, disliked Tickle, her fiancé. Scearce
also attempted to discredit Hyler with his admission that he
sometimes drank heavily and that he had drunk beer on both
September 30 and October 9. Critically, Hyler was not able to
testify without some aid as to the date of his conversation with
Scearce. In addition, Hyler testified twice that Scearce did not
say what day she wanted him to say Tickle was asleep on the sofa,
and Hyler did not testify that Tickle had never slept on his
sofa. Hyler's credibility was at issue.
The officer who transcribed Hyler's statement also testified
that after he asked Hyler "a few questions . . . as to the date
and time [the conversation] had happened, . . . [he] checked
[his] notes to make sure that that was the same date that [he]
had seen Mr. Tickle driving. Then . . . [he] wrote the
statement." In assessing whether Hyler fabricated the story, the
trier of fact clearly could have substantially relied upon the
officer's memorandum of Hyler's statement to determine that Hyler
knew the details of the event. Thus, we cannot say that the
conviction was not substantially affected by the admission of the
statement. Clay v. Commonwealth, 262 Va. 253, 261, 546 S.E.2d
728, 732 (2001).
III.
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Scearce also challenges whether the evidence was sufficient
to support the conviction. "When an appellant challenges the
sufficiency of the evidence to sustain his conviction, we review
the evidence in the light most favorable to the Commonwealth and
grant to it 'all reasonable inferences fairly deducible
therefrom.'" Kelley v. Commonwealth, 17 Va. App. 540, 548, 439
S.E.2d 616, 621 (1994) (citation omitted). So viewed, Hyler
provided testimony from which a trier of fact could find that
Scearce had sought to have him give testimony in court on
Tickle's behalf. Scearce's "argument is based entirely on the
issue of witness credibility." Walker v. Commonwealth, 258 Va.
54, 70, 515 S.E.2d 565, 575 (1999). The critical issue was
whether the finder of fact could be persuaded that Hyler was
truthful and could accurately recall the events. That is a
matter for the finder of fact to consider upon properly admitted
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evidence. Accordingly, we cannot say the evidence was
insufficient. 1
For these reasons, we reverse the conviction and remand the
case for a new trial.
Reversed and remanded.
1
We do not address Scearce's argument that she was
improperly convicted of an attempted inchoate crime. She failed
to properly preserve this issue for review.
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