Dennis Allen Bishop v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
DENNIS ALLEN BISHOP
MEMORANDUM OPINION * BY
v. Record No. 2923-98-2 JUDGE MARVIN F. COLE
MARCH 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Jay T. Swett, Judge
David L. Heilberg; Teresa E. McGarrity,
Qualified Third Year Practitioner (H. Dill
Battle, III; Neal J. Goldberg, Qualified
Third Year Practitioner; McGuire, Woods,
Battle & Boothe, LLP; Pro Bono Criminal
Adjudication Project of the University of
Virginia School of Law, on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Dennis Allen Bishop, appellant, appeals his conviction for
unlawfully and feloniously operating a motor vehicle on a public
highway after having been declared an habitual offender, a second
or subsequent offense in violation of Code § 46.2-357. He
contends that the trial court committed reversible error in
admitting the hearsay testimony of a civilian, Barry McLane,
regarding Officer M.G. Davis's out-of-court identification of
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
appellant. Because we find that Davis's out-of-court statement to
McLane qualified as an exception to the hearsay rule, we affirm
the trial court's decision.
The evidence established that on July 1, 1995, Officer
Davis parked his marked patrol vehicle in the Holiday Deli's
parking lot, just off the street, in order to monitor and
disperse loiterers. McLane had been on more than ten
ride-alongs with police officers prior to July 1995.
As the crowd near the Holiday Deli dispersed, Davis noticed
a Chevrolet Blazer vehicle pulling a Camaro vehicle on a trailer
driving towards him. The Blazer was being driven out of the
parking lot towards the street. As the Blazer slowly passed by
Davis, he recognized appellant as the driver of the vehicle.
Davis testified that he had no trouble seeing appellant; that
there was plenty of light in the parking lot; and that he
immediately recognized appellant. Davis knew appellant because
he had contact with him several times during his fifteen years
as a police officer. Davis saw appellant return his eye contact
and appellant looked scared. Davis knew appellant was an
habitual offender. Because of this, he was surprised to see him
driving a motor vehicle. He testified that he immediately said
to McLane, "[T]hat's Dennis Bishop, he's a[n] habitual
offender."
McLane testified that he only glimpsed the passing driver
and was unable to identify him. However, McLane testified that
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when Davis saw appellant's vehicle, he suddenly stated,
"[T]hat's Dennis Bishop, he's an habitual offender."
I. Davis's Statement
Officer Davis followed the Blazer out of the parking lot
and down the street. He checked the license plate on the
trailer and noticed that it lacked the proper trailer tags.
Davis initiated a traffic stop but the Blazer did not stop.
Davis pursued it onto the interstate highway. Eventually, the
trailer spun out of control and the car that was being towed was
thrown off the trailer onto the interstate. Officer Davis
stayed with the car. The Blazer proceeded down the interstate
in the wrong direction. A short time later, other officers
found the Blazer abandoned on the interstate median strip. The
driver had escaped. The abandoned Blazer was owned by David
Bishop, the appellant's father.
Appellant denied that he had been driving the Blazer on the
night of July 1, 1995. Both he and his girlfriend testified
that they were together in West Virginia from June 29, 1995 to
July 3, 1995.
Prior to trial, appellant filed a motion in limine, stating
that a Commonwealth witness, Barry McLane, was "expected to
testify as to a comment made by Officer Davis, the chief witness
for the Commonwealth, while in the presence of McLane" who was a
ride-a-long the evening of the offense. Appellant requested
that the trial court find this testimony inadmissible.
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Immediately prior to trial, the trial judge heard this motion
and representations of counsel, and held that this was a
"spontaneous utterance" and was an exception to the hearsay
rule. He overruled appellant's motion in limine and permitted
McLane's testimony to be admitted in evidence.
The sole question presented by appellant in this appeal is:
Did the trial judge commit reversible error in admitting the
hearsay testimony of a civilian regarding a police officer's
out-of-court identification of the defendant? The
Commonwealth's response was that McLane's statement was
admissible as an exception to the hearsay rule.
"Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted. A statement offered for any other
purpose is not hearsay and is, therefore, governed by the other
rules of admissibility." Garcia v. Commonwealth, 21 Va. App.
445, 450, 464 S.E.2d 563, 565 (1995) (en banc) (citation
omitted). "'[T]he party seeking to rely upon an exception to
the hearsay rule has the burden of establishing admissibility.'"
Braxton v. Commonwealth, 26 Va. App. 176, 183-84, 493 S.E.2d
688, 691 (1997) (quoting Neal v. Commonwealth, 15 Va. App. 416,
420-21, 425 S.E.2d 521, 524 (1992)).
"A statement comes within the excited
utterance exception to the hearsay rule and
is admissible to prove the truth of the
matter stated, when the statement is
spontaneous and impulsive, thus guaranteeing
its reliability. 'There is no fixed rule by
which the question whether the statement is
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admissible as an excited utterance can be
decided. Resolution of the issue depends
upon the circumstances of each case.'
The statement must be prompted by a
startling event and be made at such time and
under such circumstances as to preclude the
presumption that it was made as the result
of deliberation. In addition, the declarant
must have firsthand knowledge of the
startling event. The decision whether the
statement qualifies as an excited utterance
lies within the discretion of the trial
court."
Id. at 184, 493 S.E.2d at 691 (quoting Goins v. Commonwealth,
251 Va. 442, 460, 470 S.E.2d 114, 126 (1996) (other citations
omitted)).
We hold that Davis's out-of-court statement to McLane was
admissible under the excited utterance exception to the hearsay
rule. The statement was spontaneous and impulsive and was
prompted by the startling and unexpected event of seeing
appellant, who Davis knew to be an habitual offender, driving a
motor vehicle. Davis clearly had firsthand knowledge of the
startling event. Davis's ample prior experience with appellant
rendered Davis's statement sufficiently reliable to be admitted
as an excited utterance. Contrary to appellant's contention, no
evidence established that Davis's statement was the result of
reflection or deliberation. Indeed, appellant made no objection
to Davis's testimony at trial regarding his statement and does
not question its admissibility on appeal.
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II. McLane's Statement
The question presented in this appeal is limited to the
admissibility of McLane's testimony that he heard Davis make the
Davis statement. McLane's entire statement at trial was, in
pertinent part:
When we pulled in, I was just kind of
looking to the right and then I noticed a
vehicle looked like some -- big Bronco
pulling a trailer with a car in the back of
it, went by -- was going by us. And all of
a sudden Greg [Davis] says, that's Dennis
Bishop, he's an habitual offender.
We find that McLane's statement is admissible under the
present sense impression exception to the hearsay rule.
"It is generally accepted that a statement accompanying and
characterizing an act is admissible as a recognized exception to
the hearsay rule. Virginia recognizes this type of statement as
the 'present sense impression' exception to the hearsay rule."
Clark v. Commonwealth, 14 Va. App. 1068, 1070, 421 S.E.2d 28, 30
(1992) (citation omitted). Moreover, admissibility is not
limited to statements made by or to the person performing the
act, "'other statements describing or explaining the act, even
if not made by or to the person performing it, appear to be
admissible under the modern view of the exception.' '[I]t is
apparently sufficient if the declaration is being uttered by
someone who is witnessing the event.'" Id. (quoting C. Friend,
Law of Evidence in Virginia § 240, at 185 (3d ed. 1988 & Supp.
1991). "'Three factors must exist in order for the present
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sense impression exception to apply. They are: (1) the
declaration must have been contemporaneous with the act; (2) it
must explain the act; and (3) it must be spontaneous.'" Id.
(quoting Foley v. Commonwealth, 8 Va. App. 149, 161, 379 S.E.2d
915, 922, aff’d on reh'g en banc, 9 Va. App. 175, 384 S.E.2d 813(1989)).
McLane's statement fit all three factors and, therefore,
was admissible as a present sense impression. Davis, who
witnessed appellant driving the Blazer, suddenly stated that
appellant was the driver and that he was an habitual offender.
That declaration explained or described appellant's illegal
conduct. It also identified the appellant as the driver of the
vehicle. "It also was spontaneous, as it reflected [Davis's]
personal perceptions at that time and was not a narrative
reflection of a past event." Foley, 8 Va. App. at 164, 379
S.E.2d at 923.
"Although the cases sometimes seem to indicate that the
declaration must be uttered by the very person who is performing
the act described, it is apparently sufficient if the
declaration is being uttered by someone who is witnessing the
event." C. Friend, Law of Evidence in Virginia § 18-18, at 164
(4th ed. 1993).
The trial court did not err in admitting McLane's testimony
regarding Davis's out-of-court statement as an exception to the
hearsay rule. Accordingly, we affirm appellant's conviction for
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driving after having been declared an habitual offender, a
second or subsequent offense.
Affirmed.
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