Stanley Sellers v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia
STANLEY SELLERS
MEMORANDUM OPINION * BY
v. Record No. 2833-97-4 JUDGE WILLIAM H. HODGES
DECEMBER 15, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
M. Dale Phelps, Assistant Public Defender,
for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Stanley Sellers (appellant) was convicted in a jury trial of
driving on a revoked operator's license after having been
adjudicated a habitual offender and of driving while under the
influence of alcohol. He contends that the trial court erred by
admitting hearsay testimony of Officer Fred Kessel, who had no
independent recollection regarding the results of the sobriety
tests he administered to appellant, without meeting the
requirements of the past recollection recorded exception to the
hearsay rule. We disagree, and affirm the convictions.
I.
At 1:30 a.m. on December 3, 1995, Officer Kessel observed
appellant drive up to a green traffic light, stop his vehicle for
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
three to five seconds, make a "real wide" left turn, and then
drive a block, straddling the broken white line between the two
lanes. After observing appellant turn into a 7-Eleven parking
lot, drive up behind a marked police cruiser, and then abruptly
make a left turn and a U-turn, Kessel stopped appellant. As
Kessel approached appellant, he noticed a "heavy odor of alcohol"
emanating from appellant's lips. Appellant "fumbled through some
papers for a little while that didn't produce anything." When
appellant stepped out of the car, Kessel noticed that appellant's
eyes were bloodshot. Kessel asked appellant to perform sobriety
tests.
At trial, when Kessel testified about these sobriety tests,
Kessel said, "[T]o be completely accurate, I'd like to go to my
notes." Kessel then began to testify about the "heel-to-toe"
test he asked appellant to perform. When asked how appellant
performed the test, Kessel said, "I'm going to pull my notes,"
and acknowledged that, without referring to his notes, he could
not specifically recall how appellant performed the tests.
Kessel testified that he prepared the notes on the night of the
incident. Defense counsel objected to Kessel's use of the notes,
and argued that the foundation laid was not "specific enough for
past recollection recorded." The trial court overruled the
defense's objection.
Kessel testified that during the "heel-to-toe" test,
appellant lost his balance. Kessel had to explain the
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"finger-to-nose" test to appellant twice "to get him started."
Initially, appellant incorrectly performed the "finger-to-nose"
test without closing his eyes. When appellant performed this
test with his eyes closed, he "began to sway." Appellant failed
to follow the directions and missed his nose twice. When asked
to count from twenty to zero, appellant stopped at sixteen and
"started over three times." Appellant admitted drinking "one or
two beers" to Kessel.
II.
"The general rule of past recollection recorded allows, over
a hearsay objection, a witness with no independent recollection
of an incident to testify directly from notes or reports if
certain requirements are met." James v. Commonwealth, 8 Va. App.
98, 102, 379 S.E.2d 378, 380 (1989) (citations omitted). To meet
the requirements for this hearsay exception,
(1) the witness must have firsthand knowledge
of the event; (2) the written statement must
be the original memorandum made at or near
the time of the event, when the witness had a
clear and accurate memory of it; (3) the
witness must lack a present recollection of
the event; and (4) the witness must vouch for
the accuracy of the written memorandum.
Id. at 102, 379 S.E.2d at 380-81. See also Bailey v.
Commonwealth, 20 Va. App. 236, 240-41, 456 S.E.2d 144, 146
(1995); Kelley v. Commonwealth, 17 Va. App. 540, 548-49, 439
S.E.2d 616, 621 (1994).
Kessel had firsthand knowledge of what took place prior to
appellant's arrest. Kessel testified that he prepared the notes
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"the night of the incident." Because appellant's arrest was
around 1:30 a.m., Kessel had to have prepared his notes within
hours, if not minutes, after the arrest. Kessel acknowledged,
during his direct testimony, that he had no recollection of how
appellant performed the sobriety tests without referring to his
notes. Lastly, Kessel vouched for the accuracy of his notes when
he testified that "to be completely accurate, I'd like to go to
my notes."
Therefore, because the record shows that the Commonwealth
met the requirements to permit Kessel to testify from his notes,
Kessel's testimony was properly admitted under the "past
recollection recorded" exception to the hearsay rule and did not
constitute impermissible hearsay.
Accordingly, we affirm the judgments of the trial court.
Affirmed.
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