Jermaine S. Doss v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia
JERMAINE S. DOSS
MEMORANDUM OPINION * BY
v. Record No. 1319-00-1 JUDGE RICHARD S. BRAY
OCTOBER 16, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
James O. Broccoletti (Zoby & Broccoletti, on
brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Jermaine S. Doss (defendant) was convicted by a jury of
first-degree murder, burglary, conspiracy, and related firearm
offenses, violations of Code §§ 18.2-32, -90, -22 and -53.1,
respectively. On appeal, he contends the trial court erroneously
admitted into evidence certain telephone records and related
testimony and hearsay statements of the victim. Finding no error,
we affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal. In accordance with well established
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
principles, we consider the evidence in the light most favorable
to the Commonwealth. See Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987).
I.
On March 23, 1998, defendant hired Nathaniel McGee to kill
James M. Webb (the victim), furnished McGee with the murder weapon
and drove him to the victim's home. Following defendant's
directions, McGee entered the house and shot and killed the
victim. McGee later confessed his crime to police and detailed
defendant's complicity.
Subsequently indicted for murder, burglary, conspiracy and
related firearm offenses, defendant retained an attorney, Mr.
Shelton, to represent him. In preparation for trial, the
Commonwealth issued subpoenas duces tecum to two telephone
companies, Primeco Personal Communications (Primeco) and Alltel
Communications (Alltel), for certain phone records. Upon receipt,
such records were filed in the clerk's office of the trial court
pursuant to Rule 3A:12(b). However, prior to trial, the
Commonwealth "nolle prossed" the indictments.
On November 3, 1999, defendant was again indicted for the
subject offenses and, shortly thereafter, retained attorney
Curtis T. Brown as counsel. On December 7, 1999, pursuant to
defendant's written motion, the trial court entered a discovery
order directing the Commonwealth to
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permit counsel for the defendant to inspect
and copy or photograph designated books,
papers, documents, tangible objects,
buildings or places, or copies or portions
thereof, that are within the possession,
custody or control of the Commonwealth upon
a showing that items sought may be material
to the preparation of the accused's defense
and that the request is reasonable; . . . .
At trial, the Commonwealth moved to introduce into evidence
the Primeco phone records received by subpoena incident to the
earlier prosecution. Defendant objected, arguing that such
records had not been provided to his present attorney, Mr. Brown,
pursuant to the discovery order. In response, the Commonwealth
contended the records were not embraced by the order, had been
furnished to defendant's previous attorney, Mr. Shelton, and were
continuously available for inspection in the clerk's office. The
court overruled the objection and admitted the Primeco records,
together with related testimony, into evidence. Similarly,
numerous hearsay objections were unsuccessfully raised before the
trial court.
Defendant was convicted by the jury, resulting in the instant
appeal.
II.
Defendant first contends the trial court erroneously admitted
the Primeco phone records and attendant testimony, arguing he had
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no notice of the subpoena duces tecum as required by Rule 3A:12, 1
and the material was not provided to him in compliance with the
court's discovery order.
"There is no constitutional right to discovery in a criminal
case . . . ." Lowe v. Commonwealth, 218 Va. 670, 679, 239 S.E.2d
112, 118 (1977). However, on December 7, 1999, the trial court
entered a discovery order pursuant to Rule 3A:11,2 granting
defendant limited discovery. Nevertheless, "[w]hen a discovery
violation does not prejudice the substantial rights of a
defendant, a trial court does not err in admitting undisclosed
evidence." Davis v. Commonwealth, 230 Va. 201, 204, 335 S.E.2d
1Rule 3A:12(b) states, in part:
Upon notice to the adverse party and on
affidavit by the party applying for the
subpoena that the requested writings or
objects are material to the proceedings and
are in the possession of a person not a
party to the action, the judge or the clerk
may issue a subpoena duces tecum for the
production of writings or objects described
in the subpoena.
2
Rule 3A:11 states, in part:
Upon written motion of an accused a court
shall order the Commonwealth's attorney to
permit the accused to inspect and copy or
photograph designated books, papers,
documents, tangible objects, buildings or
places, or copies or portions thereof that
are within the possession, custody, or
control of the Commonwealth, upon a showing
that the items sought may be material to the
preparation of his defense and that the
request is reasonable.
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375, 377-78 (1985). Thus, assuming without deciding, the Primeco
phone records were within the scope of such discovery order and,
further, that requisite notice of the subpoena duces tecum was not
provided to trial counsel, reversal of the convictions is not
necessarily the appropriate remedy.
The instant record discloses that the disputed evidence was
introduced through the Commonwealth's direct examination of Susan
Connolly, Primeco's custodian of the subpoenaed material, thereby
affording defendant the opportunity to cross-examine the witness
with respect to the documents, his personal phone records.
Defendant did not move the court to continue or recess the
proceedings to facilitate preparation for such examination or
otherwise accommodate his related defense. "He sought only
suppression of the truth." Lane v. Commonwealth, 20 Va. App. 592,
595, 459 S.E.2d 525, 526 (1995). Under such circumstances,
admission of the evidence did not prejudice the defense, and
reversal is not the required remedy. 3
3
Defendant also contends the trial court erroneously
admitted the victim's Alltel phone records and related testimony.
However, by order entered on March 1, 2001, appellate review was
limited to "whether the trial court erred in admitting testimony
regarding telephone records pertaining to appellant's account with
Primeco, which appellant alleges violated the discovery order."
Moreover, defendant did not object to the admission of
these records at trial, and Rule 5A:18 bars consideration of
this issue on appeal. See Rule 5A:18 ("No ruling of the trial
court . . . will be considered as a basis for reversal unless
the objection was stated together with the grounds therefor at
the time of the ruling . . . .").
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III.
Defendant next contends that, through the testimony of Diane
Webb, John Blackowski, John Hackney, and Officer Edward Palovich,
the trial court impermissibly admitted hearsay statements of the
victim. We disagree.
"Hearsay is a statement, other than one made by the declarant
while testifying at trial, which is offered to prove the truth of
the matter asserted." Clark v. Commonwealth, 14 Va. App. 1068,
1070, 421 S.E.2d 28, 30 (1992). "Unless it is offered to show its
truth, an out-of-court statement is not subject to the rule
against hearsay and is admissible if relevant." Church v.
Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 825 (1985). "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) (citation omitted).
Guided by such principles, we examine the challenged
testimony seriatim.
A.
During trial, the prosecutor inquired of Diane Webb, the
victim's wife, "What did [the victim] tell you?" during her last
conversation with him. Defendant objected, asserting the question
sought inadmissible hearsay. In response, the Commonwealth
proffered that the witness would "describe [the victim's]
statement of a debt owed to him, that a debt was owed to him,"
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evidence not to prove the debt but, rather, "as a statement of
[the victim's] attitude towards [the defendant] at that time."
The trial court overruled the objection, and the witness testified
that
[she] was concerned about [the victim] and
asked him what he was doing at the Norfolk
City Jail. He went on to tell me about this
money that was owed to him which it wasn't
the first time I had heard it, but he went
on to say that he went after his money. He
went to a beauty shop and I guess threatened
somebody or said something and he wound up
in jail . . . .
In Church, 230 Va. at 211-15, 335 S.E.2d at 825-27, the
Supreme Court of Virginia determined the statement of a
child/victim describing "sex" to her mother as "dirty, nasty and
it hurt," was not hearsay, reasoning "[t]he Commonwealth did not
offer the child's statement to prove" the truth of her
characterization of sex but, "[r]ather, . . . to show the
child's attitude toward sex, an attitude likely to have been
created by a traumatic experience. . . . Thus, the . . .
statement was . . . admissible as circumstantial evidence
tending to establish the probability of a fact in issue." Id. at
212, 335 S.E.2d at 825-26.
Similarly, here, the disputed testimony was not offered to
prove defendant was indebted to the victim but, rather, to show a
relationship between defendant and the victim and the victim's
"attitude" toward defendant. Because motive is "'relevant and
often most persuasive upon the question of the actor's intent,'"
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the Commonwealth was entitled to develop such evidence. Archie v.
Commonwealth, 14 Va. App. 684, 690, 420 S.E.2d 718, 722 (1992)
(quoting Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d
882, 892-93 (1982)).
Defendant further complains the trial court erroneously
permitted Ms. Webb to testify that "[the victim] told [her] . . .
he was probably going to lose his life over this money." However,
defendant failed to raise a timely objection to such testimony,
precluding consideration of the issue on appeal. Rule 5A:18;
Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631
(1991).
B.
Defendant next challenges the trial testimony of John
Blackowski. Blackowski testified, over defendant's hearsay
objection, that he had
called [the victim] to go to Wal-Mart and
halfway there I went to his house. He drove
halfway there. I asked him why are we going
this way. Oh, I wanted to drive by that
beauty salon. The guy there owes me money.
And we proceeded to go to . . . Super
K-Mart.
The court admonished the jury: "Ladies and gentlemen, this is
not admissible to show that any debt did in fact exist, but to
show the decedent's feelings for the defendant." Thus, once
again, the victim's statement was not offered to prove the truth
of the matter asserted, but only to establish his relationship and
attitude toward defendant.
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C.
At trial, John Hackney testified, over defendant's hearsay
objection, that he observed cocaine transactions between the
victim and defendant, "wasn't happy with the situation," and
that the victim "was angry" with defendant. However, hearsay is
"primarily testimony which consists [of] a narration by one
person of matters told him by another," Williams v. Morris, 200
Va. 413, 417, 105 S.E.2d 829, 832 (1958), and Hackney simply
recalled his perceptions, without relating "matters told him by"
the victim. See id. Thus, the disputed testimony was not
hearsay.
D.
Defendant similarly objected to the admission of certain
testimony from Officer Palovich, and the record reflects the
following exchange:
[PROSECUTOR]: In talking to [the victim]
did he make statements about [defendant]?
A. Yes, he did.
* * * * * * *
Q. Did he indicate that there was some kind
of problem or disagreement with [defendant]?
[DEFENSE ATTORNEY]: Your Honor, once again
now he's going to the details of it.
THE COURT: Sustained. I think you are
getting close to substance.
Thus, defendant's contention that the court erroneously allowed
"the testimony about [the victim's] statements to the officer[]
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about [the defendant]," is belied by the record. Officer Palovich
was permitted to relate only that "statements" were made to him by
the victim "about" defendant, but was not allowed to recount the
substance of such remarks.
We, therefore, find no reversible error or abuse of
discretion in the admission of evidence pertaining to either the
telephone records or the testimony in issue and, accordingly,
affirm the convictions.
Affirmed.
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