Caison v. Com.
| Decision Date | 29 July 2008 |
| Docket Number | Record No. 1405-07-4. |
| Citation | 663 S.E.2d 553,52 Va. App. 423 |
| Parties | Donald Lee CAISON, Jr. v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Dawn M. Butorac, Deputy Public Defender, for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: CLEMENTS and KELSEY, JJ., and ANNUNZIATA, Senior Judge.
Donald Lee Caison, Jr., (appellant) was convicted in a jury trial of manslaughter, in violation of Code § 18.2-35. On appeal, he contends the trial court erred in admitting into evidence a recording of a 911 call and in finding the evidence sufficient to support his conviction. Finding no error, we affirm the trial court's judgment and appellant's conviction.
"On appeal, we construe the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Zoretic v. Commonwealth, 13 Va.App. 241, 242, 409 S.E.2d 832, 833 (1991) (citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). Viewed by that standard, the evidence demonstrates that around 2:00 a.m. on May 24, 2006, appellant met Katie McLachlan in front of her home at 1103 Clarke Street in Herndon, Virginia. In his pocket, appellant carried an unopened 40-ounce beer bottle. As appellant and McLachlan walked toward her house, they encountered McLachlan's roommate, Maria Gann, and her boyfriend, William Green. After McLachlan introduced appellant to Green, Green punched appellant in the nose. Appellant then fled, and Green pursued him. McLachlan and Gann followed the two men. During the chase, appellant dropped the 40-ounce beer bottle on the street. Moments later, Green caught up to appellant and a struggle ensued between the men. At some point during the affray, appellant stabbed Green with a knife. Appellant immediately fled from the scene.
After appellant fled, McLachlan and Gann carried Green, who appeared unconscious, back to the front yard of their residence. Within minutes, McLachlan called 911 and spoke to an operator employed by the Fairfax County Police. The dialogue between McLachlan and the 911 operator, in relevant part, transpired as follows:
You said that he hit him with it?
Following the incident, Green died as a result of stab wounds inflicted with a knife during the altercation. Subsequently, a jury convicted appellant of manslaughter and this appeal followed.
On appeal, appellant contends the trial court abused its discretion in admitting the 911 recording into evidence under the excited utterance exception to the hearsay rule. We disagree with appellant.
"As a general rule, hearsay evidence is incompetent and inadmissible," and "the party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility." Neal v. Commonwealth, 15 Va.App. 416, 420-21, 425 S.E.2d 521, 524 (1992).
"There is no fixed rule by which the question whether the statement is admissible as an excited utterance can be decided." Clark v. Commonwealth, 235 Va. 287, 292, 367 S.E.2d 483, 486 (1988). "Resolution of the issue depends [upon] the circumstances of each case." Id.
Esser v. Commonwealth, 38 Va.App. 520, 525, 566 S.E.2d 876, 879 (2002) (quoting Braxton v. Commonwealth, 26 Va.App. 176, 184, 493 S.E.2d 688, 691 (1997)).
Here, during rebuttal, the Commonwealth moved to admit into evidence the recording of McLachlan's dialogue with the 911 operator. Out of the jury's presence, the trial court heard the 911 recording. In resolving that the recording qualified as an excited utterance, the trial court found McLachlan, a witness to the event, made "spontaneous" statements, under the influence of and contemporaneous with the "very startling event," and without "any time for reflection" or "premeditation." Appellant claims, nonetheless, that the call does not qualify as an excited utterance because McLachlan's statements were made "in response to questions from the 911 operator."
We addressed the same argument in Bowling v. Commonwealth, 12 Va.App. 166, 403 S.E.2d 375 (1991). In that case, the victim, who was mortally wounded from gunshot wounds to the stomach, called 911 about ten minutes after the shooting. Id. at 177, 403 S.E.2d at 381. During the exchange with the 911 operator, the victim disclosed that he was shot "with a .25 or .32" by "one black male" who "was running" and "headed to the Fort Cinema." Id. at 175, 403 S.E.2d at 380. Bowling argued, like appellant, that because the victim's statements were made "in response to questions" by the 911 operator, they were not sufficiently spontaneous to be admitted under the excited utterance exception. Id. We rejected Bowling's argument, noting as follows:
Id. at 176, 403 S.E.2d at 380 (quoting Martin v. Commonwealth, 4 Va.App. 438, 442, 358 S.E.2d 415, 418 (1987)). Concluding that the victim's statements to the 911 operator "were not the result of premeditation, reflection or design, but a reaction to the startling events" which resulted in the victim's death several hours later, we held the trial court properly admitted the 911 recording pursuant to the excited utterance exception to the hearsay rule. Id. at 177, 403 S.E.2d at 381.
The same rationale applies here. McLachlan, who had just witnessed a violent confrontation, aided the victim who lay mortally wounded from the stabbings. McLachlan also faced the threat that the assailant would return to the scene to perpetrate further harm. McLachlan spoke to the 911 operator and described the incident and the assailant within minutes of the event. The operator responded to McLachlan's initial report of the confrontation to quickly ascertain the gravity of peril McLachlan faced and by directing McLachlan to render aid to a dying man. Considering the reliability of the statements in accord with Bowling, we conclude the trial court did not abuse its discretion in finding that McLachlan's responses to the 911 operator's questions were not suggested or influenced by the questions posed by the 911 operator.
Thus, the fact that McLachlan was answering questions, rather than relaying a spontaneous narrative, does not indicate her statements were not excited utterances. See United States v. Joy, 192 F.3d 761, 766-67 (7th Cir.1999) (). Compare Clark, 235 Va. at 293, 367 S.E.2d at 486 (), and Harris v. Commonwealth, 8 Va.App. 424, 430, 382 S.E.2d 292, 295-96 (1989) (...
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