Braxton v. Com.

• Decision Date: 16 December 1997
• Docket Number: No. 1344-96-4,1344-96-4
• Citation: 493 S.E.2d 688,26 Va.App. 176
• Court: Virginia Court of Appeals
• Parties: Kenneth Lamont BRAXTON v. COMMONWEALTH of Virginia. Record

Page 688

493 S.E.2d 688

26 Va.App. 176

Kenneth Lamont BRAXTON v. COMMONWEALTH of Virginia.

Record No. 1344-96-4.

Court of Appeals of Virginia Alexandria.

Dec. 16, 1997.

Robert F. Horan, III, Fairfax (Ronald Wayne Fahy, Manassas; Horan & Fisher, Fairfax, on briefs), for appellant.

Michael T. Judge, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., ^* ELDER, J., and DUFF, Senior Judge.

ELDER, Judge.

Kenneth Lamont Braxton ("appellant") appeals his convictions of first degree murder and petit larceny. He contends the trial court erred when it (1) admitted as an "excited utterance" the hearsay statement of the victim's three-year-old son ("child") and (2) ruled that the child's statement and evidence regarding his condition following the discovery of the victim's body were relevant. For the reasons that follow, we affirm.

I. FACTS

In early 1995, Lorann Cox ("victim") was working as an undercover drug informant for the Manassas City Police Department. On February 3, 1995, she executed a controlled buy of cocaine from appellant. On June 3, the Manassas police obtained a warrant for appellant's arrest based upon the information provided by the victim. This warrant was executed on June 7 and a preliminary hearing was scheduled for July 6. A subpoena was issued ordering the victim to appear and testify at the preliminary hearing.

On June 30, appellant was riding in a car near the victim's home with his second cousin, Yolanda Skinner. Appellant told Skinner "about some charge that [the victim] had on him" and stated that "he would kill [the victim], if he could." Appellant pointed out the victim's house to Skinner and said, "that's where the bitch lives." During this conversation, appellant asked Skinner if she knew where he could obtain a gun. Skinner replied that she did not know anybody who had a gun.

On the evening of July 2, the victim and her three year old visited her parents at their home. The victim's father noticed that the child's "nose [was] running" and made arrangements with the victim to care for the child the following day. The victim's father and the victim, who worked for the same employer but at different times of the day, arranged to meet at the end of the father's shift so that the father could take the child home and care for him while the victim worked. After making these arrangements, the victim left her parents' house around 10:30 p.m. to return home for the evening.

The next day, July 3, the victim did not meet her father at the appointed time. The victim's father attempted to contact her by phone and by pager, but the victim did not respond. The victim's father then drove to the victim's house and arrived there at about 2:35 p.m. He tried the front door, discovered that it was unlocked, and walked into the victim's house. After searching for six or seven minutes, he discovered his daughter's body lying face down behind a love seat in the living room. He also found the child, who was unharmed, next to the victim's body. The victim's father picked up the child and removed him from the scene. Four minutes later, the victim's father used a phone in a neighboring house to call "911" and then the victim's brother.

Both an ambulance and the police arrived at the scene a short while later. The victim's house was secured, and investigators collected evidence from the scene. A metal cooking pot with a large dent in it was found a few feet from the victim's body. A plastic container that dispensed body lotion was found next to the victim's sink. A bloody fingerprint matching appellant's right index finger was found on top of the dispenser's pumping An autopsy of the victim revealed that she was stabbed nineteen times in the neck with a sharp object. The medical examiner also found "a number of bruises about the [victim's] body and face" and a swollen area on the back of her head that were consistent with "a blow to the head with a large object such as a pot." The victim's death was attributed to the stab wounds to her neck, which caused "profuse bleeding."

mechanism. A DNA analysis of the blood in which the fingerprint was formed indicated a high probability that it was the victim's.

Ronald Wortmann, an inmate in the Prince William County Adult Detention Center, informed authorities that appellant confessed to him that he murdered the victim. Wortmann later testified that he asked appellant "what he was in here for" and appellant told him that he had been charged with the victim's murder. Appellant then told Wortmann that "[he] did the bitch." Appellant told Wortmann he had learned that the victim was working undercover for the Manassas City Police Department by following her when she met with officers at the police department. When Wortmann asked him why he had murdered the victim, appellant responded, "she was going to tell on all of us." Appellant also told Wortmann that "a baby" was at the scene when he murdered the victim.

Appellant was charged with the capital murder and robbery of the victim. A jury convicted him of first degree murder and petit larceny.

The scope of this appeal is limited to the admissibility of an out-of-court statement made by the child after he was discovered at the crime scene and the evidence regarding his condition during this time. The following is a summary of the contested evidence.

At trial, the victim's father testified that when he found the child next to the victim's body, "it looked like [the child] had been sleeping across her body...." After he picked up the child and carried him out of the house, the victim's father noticed that "[the child] had dried mucous down the front of his nose from the cold" and that he was wearing "the same diaper that he had on the night before." He also noticed that the child was wearing a t-shirt that had "some blood on it" and that the child "had kind of a glazed look in his eyes" and "was in a dazed state." Appellant objected to all of this evidence on the ground that it was not relevant, and the trial court overruled his objections.

Later in the trial, the victim's brother testified that the victim's father gave the child to him outside the victim's home. The victim's brother testified that he spoke with a police officer for about five minutes and then took the child to his home "to get him away from everything." The victim's brother noticed that the child "was not himself" and that he "was in shock, kind of dazed." The victim's brother also observed blood on the child's shirt and identified in court the blood- shirt that the child had been wearing. The victim's brother testified that his wife washed the shirt before delivering it to the police. Appellant's counsel objected to all of this evidence on the ground that it was irrelevant, and the trial court again overruled his objections.

The victim's sister-in-law testified that, on July 3, the victim's brother brought the child to their house from the crime scene. She testified that the child "was quiet [and] subdued" and that "there was some blood on his shirt." She testified that she removed the blood-stained shirt from the child and eventually washed it. Appellant's counsel objected to all of this evidence on the ground that it was not relevant. The trial court overruled his objections. The victim's sister-in-law also testified that the child made statements about the victim "every ten to fifteen minutes."

Kathleen Burch testified that she arrived at the residence of the victim's sister-in-law on July 3 after the child was already there. She testified that the child indicated to her that he wanted to "go out and play" and that she took him outside. When asked to describe the child's "demeanor and appearance," Burch testified that the child "was very quiet and just dazed." Appellant's counsel did not object to this testimony.

The Commonwealth then indicated to the trial court that it intended to offer a statement that the child made to Burch while the The trial court ruled that the child's statement was relevant. It reasoned that the statement was probative of "how that contusion came to be on [the victim's] head" and of "the gender of the person who struck her." The trial court then ruled that the statement, although hearsay, fell within the excited utterance exception to the hearsay rule. It reasoned:

                two were outside.  The trial court heard arguments regarding the admissibility of this statement outside the presence of the jury.  The Commonwealth proffered that Burch would testify that "the child unsolicited told her the man--hit[ing] his head like this (indicating)--Mommy on the head."   Appellant's counsel argued that the statement was inadmissible on three grounds:  (1) it was hearsay not within the excited utterance exception;  (2) it was cumulative of other evidence already admitted;  and (3) it was irrelevant
                

The age of the child, I think, is a substantial factor. And the evidence in this case establishes at least this. That while it's not clear what period of time elapsed between the time that [the victim] was injured or killed until the time he saw [the victim's father], the evidence does establish fairly clearly that from the time [the victim's father] came and picked him up out of there he was passed off in quick succession from [the victim's father] to [the victim's brother] ... to [the victim's sister-in-law] and then to [Burch], and that he was variously described as quiet, dazed, those sorts of things, which is to say ... in my view that [the child was] under the influence of the events still....

Burch then testified that the child told her "[t]hat man (indicating) mommy on the head." The record established that Burch placed her hand to her head "in a striking manner."

Later in the trial, Officer S.C. Newsome of the Prince William County Police Department testified that, on March 6, 1996, the victim's sister-in-law gave him the blood-stained shirt worn by the...