Maurice Daniel Reed v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Annunziata
Argued at Alexandria, Virginia
MAURICE DANIEL REED
v. Record No. 2664-94-4 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA DECEMBER 29, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge
Michael S. Arif (Martin & Arif, on brief),
for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Richard B. Smith, Assistant Attorney
General, on brief), for appellee.
On appeal from his conviction for murder, robbery, and use
of a firearm in the commission of a felony, Maurice Daniel Reed
contends the trial court erred in allowing a police officer to
testify whether there were any differences in the statements made
to him by three men allegedly involved in the crime. We find no
error and affirm the judgment of the trial court.
On June 11, 1993, at approximately 11:00 p.m., Melissa
Trowbridge heard noises outside her home. Looking out into the
lighted cul-de-sac, she saw a man standing next to a white car,
holding a gun on a man lying face down in the street. She saw
the man holding the gun shoot the man lying down in the back of
the head. The shooter then jumped into the passenger side of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
white car and the car drove off.
When the police arrived, they found Dale H. Fredericks lying
dead in the street with his "head . . . just about completely
blown off." His pants pockets had been pulled out and were
empty.
The next day, Fredericks' car was located in front of Reed's
apartment. Bloodstains were found on the left rear tire. Latent
fingerprints of Fredericks and Kamal Muwwakkil were found on the
car.
On June 14, 1993, Reed told Investigator Lyons that "he
bought the RX-7 for fifteen dollars from a fellow by the name of
Stick Man over in Southeast Washington . . . on . . . the 12th
. . . ." The following day, Reed told Lyons that "in the parking
lot of his apartment building, he met an individual he identified
as a pipehead and that he purchased the car from him." He told
Lyons that he knew the car was stolen and that was why he threw
the keys off the Wilson Bridge into the river. Investigator
Lyons told Reed that he did not believe him. Reed terminated the
interview, but returned shortly thereafter. He told Lyons that
he was at the scene of the crime, but that Cedrick McAllister and
Kamal Muwwakkil were the ones in the victim's car and that
Muwwakkil had the shotgun.
At trial, Hassan Hargrove testified that he, Reed,
Muwwakkil, McAllister, and Kenyan Nash got into Reed's station
wagon at Reed's apartment. Reed brought two shotguns. They were
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all smoking marijuana.
Hargrove testified that while driving on the beltway towards
Virginia, they saw a white Mazda RX-7, with license plate HIPPOS,
and decided to take it. They followed the car onto a
residential street and parked around the corner from where it
parked. Reed and Muwwakkil jumped out of the station wagon and
ran toward the white car. A few seconds later, Hargrove heard a
gunshot. They saw Reed and Muwwakkil leave in the white car and
followed in Reed's car.
During cross-examination of Investigator Lyons, Reed's
counsel questioned him regarding statements made by Hargrove,
Muwwakkil, and Nash. On redirect examination, the Commonwealth
asked Lyons whether the statements made by those three men
varied. Lyons replied, "No, Sir. None." Reed objected to the
question and answer on the ground that they called for and put
into evidence a conclusion based on hearsay. The trial court
overruled the objection, holding that Reed had opened this line
of questioning during his cross-examination. On re-cross, Reed
again referred to the statements made by Hargrove, Muwwakkil, and
Nash.
"A trial judge's ruling on the admissibility of evidence
'will not be disturbed on appeal in the absence of an abuse of
discretion.'" Hunter v. Commonwealth, 15 Va. App. 717, 724, 427
S.E.2d 197, 202 (1993) (en banc). We find no abuse of discretion
in the trial court's overruling the objection and receiving
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Lyons' testimony. Furthermore, the Supreme Court has held that
"where an accused unsuccessfully objects to evidence which he
considers improper and then on his own behalf introduces evidence
of the same character, he thereby waives his objection, and we
cannot reverse for the alleged error." Hubbard v. Commonwealth,
243 Va. 1, 9, 413 S.E.2d 875, 879 (1992).
Investigator Lyons' testimony was not hearsay. He did not
repeat the witnesses' out-of-court statements to prove their
truth. He simply reported his perception from what he had heard
as explanation for his development of the case. The jury was
able to decide for itself whether the statements made by
Hargrove, Muwwakkil, and Nash varied.
The judgment of the trial court is affirmed.
Affirmed.
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