Gurganus v. Commonwealth ( 1999 )

BRAY, Judge.

Derek Wayne Gurganus (defendant) was convicted in a jury trial for statutory burglary and grand larceny, violations of Code §§ 18.2-91 and -95, respectively. He complains on appeal that the trial court erroneously admitted into evidence ■ a prior consistent statement given to police by a Commonwealth witness. Finding no error, we affirm the convictions.

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).

I.

On the morning of September 9, 1996, James Elkins, an employee of Hallmark Communications (Hallmark), discovered evidence of forced entry into the business location in Isle of Wight County and “stuff missing.” Elkins notified the local sheriff, and Lieutenant Tom Gibbons was assigned to investigate. Gibbons proceeded to the scene, inspected the building, and observed that “the entire place had been ransacked,” with damage to both rear entry and interior doors. A subsequent inventory confirmed that numerous items had been stolen, including a “console ... T.V.” and nine pagers.

Shortly after Gibbons’ arrival, Sheriff’s Deputy Willard “showed up” and provided Gibbons with particulars relative to a suspicious vehicle he had observed in the area at “about 4:30 [that] morning.” Gibbons ascertained that the vehicle was registered to a Virginia Beach address and immediately contacted that city’s police, requesting assistance in locating the car. Within hours, Virginia Beach police stopped the vehicle, recovered the stolen TV and pagers, and arrested the driver, Eric Landers, and his passenger, Kevin (Greg) Baucom, for “possession of stolen articles.”

Gibbons learned immediately of the arrests, proceeded directly to Virginia Beach, arriving within an hour, questioned Landers, and obtained the following signed statement:

I, Eric Joseph Landers, left my house on the night of September 8th with my two friends [defendant and Baueom]. We went and picked up my car from Newport News. Then we went to [defendant’s] house and dropped his car off. We started driving to one of our friend’s house just to say hey and see what he was doing. But on the way there we had seen the store and they (Derek [defendant] and Greg [Baucom]) were like, hey, let’s hit this place. So after we visited our friend for a little while we headed back towards where we came from. They had told me to let them out and go pick them up in twenty minutes. I drove around and they ... told me to drive down the dirt road so they could put the things in the car. So like an idiot, I did. I was sitting in the car telling them to leave because what they were doing was stupid. I never set one foot inside that building. That is the honest truth. All I did was get out of the car and walk where they could hear me and tell them I was leaving so they had better come on.

I am so sorry for even driving around. Even though I didn’t take anything I still should have not ever drove around for them. I was scared and I didn’t know what to do. I’m not used to being scared so I just went along and drove around. I’ve never been more scared than I am right now. One of them has said (pretty much said) if someone rats them out they’re dead, so I don’t know what to do, but I am telling the truth and I will cooperate with you one hundred percent. I just want to go to college and make something of myself. I just hope that I haven’t already ruined that chance.

Landers’ trial testimony, as a Commonwealth witness, was substantially consistent with his earlier statement to Gibbons, and the Commonwealth attempted to introduce it into evidence. Defendant, however, objected, arguing that the Commonwealth was attempting to improperly “bolster” Landers’ testimony. In sustaining the objection, the trial court concluded that the evidence was inadmissible “until [defense counsel] attacks [Landers’] credibility.”

Defendant concedes on brief that counsel subsequently “cross-examined Mr. Landers in an attempt to impeach his testimony and challenge his credibility.” In response to such questioning, Landers acknowledged that the Virginia Beach charge had been “dropped” following his arrest in Isle of Wight on September 12,1996 for the instant offenses and that trial in Isle of Wight had been delayed until he testified in the subject prosecution. Landers admitted “hope” that “something good” would result from his testimony but steadfastly denied that anyone promised “anything” in return. Defendant did not explore Landers’ motives in making the earlier statement to Gibbons.

. The Commonwealth recalled Gibbons on rebuttal and offered Landers’ statement “to refute the notion that’s been put forward by the defense that he’s fabricated [a story] ... to benefit himself.” Defense counsel objected, again arguing that the statement would improperly bolster Landers’ credibility. The trial court, however, concluded that the statement was then admissible as “one of the exceptions to the hearsay rule” against prior consistent statements and permitted Gibbons to relate it to the jury. The disputed convictions followed and defendant, on appeal, challenges the admissibility of the prior statement.

II.

“As a general rule, a prior consistent statement of a witness is inadmissible hearsay.” Faison v. Hudson, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992) (citations omitted). However, the Supreme Court of Virginia has approved “a few narrowly circumscribed exceptions,” id.,

when the opposing party: (1) suggests that the declarant had a motive to falsify his testimony and the consistent statement was made prior to the existence of that motive, (2) alleges that the declarant, due to his relationship to the matter or to an involved party, had a design to misrepresent his testimony and the prior consistent statement was made before the existence of that relationship, (3) alleges that the declarant’s testimony is a fabrication of recent date and the prior consistent statement was made at a time when its ultimate effect could not have been foreseen, or (4) impeaches the declarant with a prior inconsistent statement.

Mitchell v. Commonwealth, 25 Va.App. 81, 84-85, 486 S.E.2d 551, 552-53 (1997) (citing Faison, 243 Va. at 404-05, 417 S.E.2d at 309-10); see also 1 Charles E. Friend, The Law of Evidence in Virginia § 4-12 (4th ed. 1993 & Cum.Supp. 1998). Manifestly, such exceptions are intended to permit a party to “repel ... an imputation” that a witness testified untruthfully by “show[ing] that the witness made a similar statement at a time when the supposed motive [to fabricate] did not exist.” Repass v. Richmond, 99 Va. 508, 515, 39 S.E. 160, 163 (1901).

Thus, once defendant tainted Landers’ trial testimony with evidence suggesting that self-interests had compromised his veracity, Landers’ prior consistent statement to Gibbons was admissible to repair his credibility, provided the statement was made before Landers had reason or design to falsify. In seeking to escape the rule in this instance, defendant maintains that “bias, interest or corruption” inhered in Landers’ post-arrest statement to Gibbons. He reasons that Landers then had a “motive to lie” and “shift the blame from himself to another in an attempt to get favorable treatment,” although the record does not disclose evidence of promise, expectation or other incentive to fabricate at that time.

In support of his contention that Landers’ post-arrest custodial status, without more, infected his statement with self-interest, defendant relies upon Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871 (1990). In Smith, the accused had brutally murdered a police officer, following earlier threats to “shoot the first [police officer] that arrive[d].” Id. at 249, 389 S.E.2d at 874. Subsequent to arrest, Smith explained to police that he fired his weapon in self-defense after an assailant first shot him in the foot, a clearly exculpatory statement reflective of a “motive to lie,” together with “sufficient time to fabricate a story.” Id. at 261, 389 S.E.2d at 880. In concluding that Smith’s statement was inadmissible as a prior consistent statement, the court looked beyond Smith’s mere status as an arrestee and considered the content of the statement, together with attendant circumstances, to find that it was fraught with self-serving motive, corrosive of truth. See id.; see also United States v. Henderson, 717 F.2d 135 (4th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984) (arrest alone does not establish a motive to fabricate).

In contrast, Landers’ prior statement was clearly inculpatory, a confession not simply to possession of stolen goods, the Virginia Beach offense for which he was then in custody, but, additionally, a ready admission to participation in the then uncharged burglary and larceny in Isle of Wight. Unlike Smith, Landers further implicated rather than exonerated himself. Thus, the content of Landers’ statement, an appropriate consideration to our analysis, countered any attribution of taint arising solely from the attendant circumstances.

Moreover, the record offers no support to defendant’s claim that Landers’ statement was otherwise prompted by unspoken coercion, anticipation of leniency or favor, or improper , motive. No evidence suggests a scheme to mislead through the statement, prior knowledge of its consequences or the existence of inconsistent statements. During cross-examination of Landers, defendant probed only his reasons for testifying at trial, with no inquiry into considerations that induced Landers to speak with Gibbons months previously. He now relies on a silent record to discredit Landers’ statement.

It is well established that “[t]he 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). “Thus, we should reverse only upon ‘clear evidence that [the decision] was not judicially sound’ and not simply to substitute our ‘discretion for that rendered below.’ ” Jefferson v. Commonwealth, 27 Va.App. 477, 488, 500 S.E.2d 219, 225 (1998) (alteration in original).

Under the instant circumstances, we find no abuse of discretion in the admission of Landers’ prior consistent statement into evidence and, accordingly, affirm the convictions.

Affirmed.