Clark v. Com.

• Decision Date: 02 December 1986
• Docket Number: No. 0150-85,0150-85
• Citation: 351 S.E.2d 42,3 Va.App. 474
• Parties: Steven Lee CLARK v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 42

351 S.E.2d 42

3 Va.App. 474

Steven Lee CLARK v. COMMONWEALTH of Virginia.

Record No. 0150-85.

Court of Appeals of Virginia.

Dec. 2, 1986.

N. Randolph Bryant (James R. Larrick, Hall, Monahan, Engle, Mahan & Mitchell, Anderson, Larrick & Larrick, on brief), for appellant.

Margaret Poles Spencer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, DUFF and KEENAN, JJ.

KEENAN, Judge.

Steven Lee Clark was convicted of first degree murder, conspiracy to commit robbery, attempted robbery and use of a firearm in the commission of murder. He was sentenced in accordance with the jury's verdict to life imprisonment for murder, ten years for conspiracy, ten years for attempted robbery and two years for use of a firearm. The issues presented in this appeal are: (1) whether the court erred in allowing testimony regarding statements made by the victim describing his assailant; and (2) whether the court erred in allowing the prosecutor to comment on this testimony during the rebuttal portion of his closing argument. We find that the court erred in ruling that the victim's statements were admissible under the spontaneous utterance exception to the hearsay rule; however, we find that the statements were properly admissible under the dying declaration exception. We also find that the court did not err in allowing the prosecutor to comment on the testimony regarding the victim's statements during rebuttal argument. Accordingly, we affirm the convictions.

I. FACTS

The evidence at trial established that Clark and two companions, Billy Mauck and Jerry "Buddy" Strawderman conspired to rob Clark's former co-worker, Garland McDonald. The three men went to McDonald's trailer at approximately 8:00 p.m., on the evening of January 28, 1984, with the expressed intention to rob McDonald. Clark was armed with a .22 caliber rifle. The trailer was located behind Weber's Nursery off of Route 11 in Frederick County. Also located near McDonald's trailer was a Big Red service station. McDonald was a caretaker at Weber's Nursery. Clark had also worked at the nursery and lived for a short time with McDonald.

When Clark and his companions arrived at the trailer, Clark knocked on the door and was admitted by McDonald. Shortly thereafter, within five to ten minutes, Mauck also entered the trailer and was introduced to McDonald by Clark. Mauck testified that Clark went to use the bathroom a few minutes after he (Mauck) arrived and took the gun with him. According to Mauck, when Clark returned he motioned to Mauck to move from where he was sitting. Clark then gave the gun to McDonald and said: "How do you like my new gun?" McDonald replied: "It is a nice gun." Mauck further testified: "[Clark] looked over at me and looked back and set the gun up and he pointed the gun and shot him (McDonald) in the chest." Mauck estimated that the gun was approximately two and one-half feet from McDonald at the time Clark fired.

Mauck testified that McDonald got up after being shot and moved toward Clark who began to reload the gun. Mauck ran from the trailer and heard a second shot after he was outside. Strawderman, who remained outside, ran with Mauck to their car. As they were running, they heard two more shots coming from the trailer. Strawderman testified that Mauck and Clark were inside the trailer for no longer than five minutes prior to the shooting.

After Mauck and Strawderman got back to the car, Clark joined them within two minutes. Strawderman testified that Clark said to them: "I shot my ex-boss." The three men drove a short distance, but turned around to return to the trailer because Clark wanted to make sure that McDonald was dead. Strawderman testified that when they returned to the trailer, Clark looked inside and saw that McDonald was not there. They then heard sirens and saw lights flashing in the direction of the Big Red service station. Mauck estimated that approximately five minutes elapsed from the time they initially ran from the trailer to the time they returned and found that McDonald had left. Strawderman estimated this time to have been ten minutes. Upon seeing the flashing lights, the three men again left the trailer and made their way to a friend's house.

Robert West, the manager of the Big Red station, testified that he saw McDonald enter the station at approximately 8:20 p.m. on that evening, with blood on his arm and a knife in his hand. West asked him: "What happened, were you in a fight, did someone try to rob you? What is the matter, Mac?" Over defense counsel's hearsay objection, West was allowed to testify that McDonald said: "The tall boy, the tall boy that used to work at Weber's." West also testified that McDonald told him to call the police. The court allowed this testimony on the ground that it came under the spontaneous utterance exception to the hearsay rule.

Deborah Light, a clerk at the Big Red station, testified that McDonald came to the station at 8:20 that evening. She testified that McDonald told them he needed help. She further testified that McDonald was having trouble breathing and that he lay down. When he sat up, Light noticed blood on his shirt. According to Light, McDonald said: "The tall boy at the nursery did it."

Both Light and West testified that McDonald appeared calm. Light testified that when McDonald realized he was frightening them, he told them he wasn't going to hurt them and put his knife down. However, West testified that McDonald "obviously was hurt and in pain." Immediately after calling the police, West called the rescue squad because Light informed him that McDonald was "hurt pretty badly."

Deputy Joey Henry of the Frederick County Sheriff's Department testified that he responded to a call from the Big Red station at approximately 8:30 p.m. Henry stated that when he arrived, he raised McDonald's shirt and saw a small hole and large areas of blood. Henry also observed an injury to McDonald's hand. When the rescue squad arrived and took McDonald to the hospital, Henry accompanied him. Henry testified that during this time McDonald "was primarily unconscious although he came more of a semi-conscious state and more or less acted as being in some type of agony or something like that." Henry further testified: "[McDonald] would raise up out of the stretcher which he was on. He would, you know, cry out. But he never made any, said any words of anything like that, you know, that were legible."

Dr. Joseph Deignan, a surgeon, testified that he examined McDonald at the Winchester Medical Center at approximately 8:30 to 8:40 p.m. that evening. He stated that at this time McDonald was "in an almost death-like state or predeath-like state." Deignan stated that McDonald had two chest wounds and a wound in the right wrist. After attempting to revive McDonald for approximately one hour without success, Deignan pronounced McDonald dead. Dr. James Beyer performed an autopsy on McDonald. Beyer testified that McDonald sustained three gunshot wounds, two of which he characterized as "lethal" because of resulting blood loss and damage to the liver and left lung.

Rocco Ricky, an investigator with the Frederick County Sheriff's Department, investigated the crime. He testified that in inspecting the area between the Big Red station and McDonald's trailer, he found "a path of blood leading from the door of the entrance to the trailer down alongside of the trailer which led to another building which is associated with the nursery and it subsequently led to the office of the Big Red service station." Later testimony established that this trail covered 492 feet.

Clark testified in his own behalf. His version of the events was that Mauck picked up the gun and shot McDonald. Consistent with this theory, Clark's attorneys attacked the credibility of prosecution witnesses Mauck and Strawderman during closing argument. In rebuttal, the prosecutor sought to rehabilitate his witnesses by citing other evidence that was consistent with their testimony. The evidence cited included the statements made by McDonald. Defense counsel objected on the grounds that he had not referred to McDonald's statements during his closing argument. The court overruled the objection, stating:

I think the Commonwealth could make argument in rebuttal to try to substantiate the credibility of his witnesses and to cite things that would help to overcome the attack of the defense of the credibility of its witnesses. So, I think he can fairly argue. That wouldn't be new argument, but rebuttal, to cite circumstances that would tend to corroborate or enhance the credibility of witnesses whom the defense has attacked as to their credibility.

II. HEARSAY OBJECTION

On appeal, Clark first argues that the court erred in finding that McDonald's statements were admissible under the spontaneous utterance exception to the hearsay rule. We agree. The rule in Virginia is that "[e]xcited utterances prompted by a startling event, and not the product of premeditation, reflection, or design, are admissible, but the declaration must be made at such time and under such circumstances as to preclude the presumption that it was made as the result of deliberation." Goins v. Commonwealth, 218 Va. 285, 287, 237 S.E.2d 136, 138 (1977).

As the party seeking to establish an exception to the hearsay rule, the Commonwealth had the burden of clearly showing that McDonald's statements were admissible. Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984). In Doe, the Supreme Court summarized the factors which bear upon the decision to admit evidence under the excited utterance exception. The Court stated:

Although not controlling, the lapse of...