Bobby Lee Hurley, a/k/a Bobby Church v. CW ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
BOBBY LEE HURLEY, A/K/A
BOBBY CHURCH
MEMORANDUM OPINION * BY
v. Record No. 2794-97-3 JUDGE DONALD W. LEMONS
MARCH 2, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
Joseph F. Dene (Dene & Dene, P.C., on brief),
for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Bobby Lee Hurley was convicted in a jury trial of one
count of distribution of cocaine to a juvenile at least three
years his junior, a violation of Code § 18.2-255. On appeal he
argues that the trial court erred by allowing the Commonwealth to
prove the distributee's age from "driving records."
On appeal Hurley maintains that testimony by Deputy Gary
Hughes was improper because he testified from a document that was
not authenticated and the testimony was hearsay. The entirety of
the testimony and the colloquy between the court and counsel is
as follows:
Q: All right. And, sir, do you also have a
certified copy of the driving and criminal
record of [John Doe] who was the confidential
informant in this case?
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
A: I have a driving record.
Q: And what does that indicate his date of
birth as being?
[DEFENSE COUNSEL]: May I review the record
first, please?
THE COURT: Certainly.
THE WITNESS: This is the driving transcript
of both of them.
Q: What does the certified Copy of the
driving record - -
[DEFENSE COUNSEL]: I’m going to object to
the testimony from the driving record of an
individual. The individual is here. He’s
already been sworn in, your Honor. He can
take the stand and tell - -
THE COURT: And may well testify, [defense
counsel], but I think this is a proper
document, it’s admissible, although the
Commonwealth is not offering the entirety of
the record. Certainly with the admissibility
of the record, the Commonwealth is entitled
to offer selected portions of that record.
I’ll allow the testimony over objection of
counsel.
[DEFENSE COUNSEL]: Yes, sir.
Q: What does the certified copy of the
driving record of [John Doe], what does that
state his date of birth is?
A: January 22, 1979.
THE COURT: 1979?
THE WITNESS: ’79, yes, sir.
Q: Sir, again, the defendant is charged with
distributing cocaine to a juvenile,
specifically [John Doe] on March 22, 1996.
As of that date, the 22nd of March, 1996,
what would [John Doe's] age have been?
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A: I believe it would be 17.
Q: 17.
A. At the date of offense.
At trial Burley’s objection appears to have been that the
Commonwealth should call the juvenile in order to establish his
age. We are unaware of any authority that would require the
Commonwealth to prove this fact in this particular manner. On
appeal Burley asserts different objections, namely, that the
driving records were not properly authenticated and the
information contained therein was hearsay. These objections were
not presented to the trial court, and they will not be considered
for the first time on appeal. Rule 5A:18.
For the foregoing reasons, the conviction is affirmed.
Affirmed.
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