Walter S. Jones v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued by Teleconferencing
WALTER S. JONES
v. Record No. 1719-94-3 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA FEBRUARY 13, 1996
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
J. Patterson Rogers, 3rd, for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Walter S. Jones (appellant) was convicted in a jury trial of
malicious wounding, maliciously shooting into an occupied
dwelling, and using a firearm in the commission of malicious
wounding. On appeal, he argues that the trial court erred in
finding that his exercise of the marital privilege under Code
§ 19.2-271.2 rendered his wife an unavailable witness whose prior
recorded testimony was admissible under the prior testimony
exception to the hearsay rule. For the reasons that follow, we
affirm the trial court.
In February 1994, appellant and his wife, Ronetta Jones,
separated. Appellant's third cousin, Michael Chaney (Chaney),
helped Mrs. Jones move. On March 6, 1994, Mrs. Jones and Chaney
spent the evening together and returned to Chaney's house. They
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
were sitting in Mrs. Jones' father's car in the driveway when
appellant arrived. Appellant fired a gun out of the driver's
side window of his car and hit Chaney's front door. Chaney got
out of the car and began running towards his house. Appellant
fired five to six shots, and one struck Chaney in the back and
became lodged in his lung. Chaney was able to reach his house
and hid there. Appellant pulled Mrs. Jones out of the car by her
hair, beat her, and fired more shots. Chaney's brother called
the police, and the police apprehended appellant near Chaney's
house.
Appellant was indicted on charges of malicious wounding,
maliciously shooting into an occupied dwelling, and use of a
firearm in the commission of malicious wounding. He was also
charged with misdemeanor assault and battery against his wife
arising out of this incident and convicted in the juvenile and
domestic relations district court. Mrs. Jones testified against
appellant in the misdemeanor assault trial, and appellant called
her as a witness at the preliminary hearing on the charges
involving Chaney. Her preliminary hearing testimony was
recorded.
During the trial on the charges involving Chaney, the
Commonwealth requested permission to call Mrs. Jones as a
witness. Appellant objected, asserting the marital privilege of
Code § 19.2-271.2. The trial court held that appellant did not
waive his marital privilege by having called wife as a witness at
2
the preliminary hearing. However, the court ruled that
appellant's assertion of the marital privilege rendered Mrs.
Jones an unavailable witness and that her prior recorded
testimony was admissible under the prior testimony exception to
the hearsay rule. Appellant then withdrew his assertion of the
marital privilege, and the following colloquy occurred between
his attorney and the trial judge:
MR. ROGERS: Mr. Jones has instructed me to
inform the Court that he will withdraw his
marital privilege with regard to her
testimony, but it is being done so as a
result of the Court's ruling with regard to
her testimony at the preliminary hearing and
its admissibility. For the purposes of
appeal we wish to note that he is not
asserting marital privilege at this point
because of the fact that I would not, or no
one actually on his behalf, otherwise would
be permitted to cross examine the witness, if
only her testimony as recorded at the
preliminary hearing would be introduced.
THE COURT: Alright, you are withdrawing . . .
MR. ROGERS: We are withdrawing the objection
. . .
THE COURT: . . . your objection to Mrs. Jones
testifying . . .
MR. ROGERS: Yes.
THE COURT: . . . in this case?
MR. ROGERS: Yes, because of the fact that . . .
THE COURT: I understand, because I've
already ruled that the testimony at the
preliminary hearing will be admissible.
MR. ROGERS: Yes sir, and this is the only
way that he could get cross examination.
3
(Emphasis added.) The Commonwealth called Mrs. Jones as a
witness, and appellant cross-examined her. Appellant was
convicted in a jury trial of all three charges involving Chaney
and sentenced to fourteen years in the penitentiary.
"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, except for good
cause shown or . . . to attain the ends of justice." Rule 5A:18.
By withdrawing his objection to the Commonwealth calling his
wife as a witness, appellant waived his marital privilege and
failed to preserve for appeal the arguments raised in his brief. 1
Moreover, this record reflects no reason to invoke the good
cause or ends of justice exceptions to Rule 5A:18.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
1
Because appellant failed to preserve his arguments for
appeal, we do not address the following issues: (1) whether the
marital privilege barred Mrs. Jones from testifying at the trial
on the charges involving Chaney; (2) whether appellant waived his
marital privilege by calling his wife as a witness at the
preliminary hearing; or (3) whether Mrs. Jones was an unavailable
witness whose prior recorded testimony was admissible under the
prior testimony exception to the hearsay rule.
4