Hall v. Com.

• Decision Date: 02 April 1991
• Docket Number: No. 1321-88-3,1321-88-3
• Parties: Dock HALL, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 362

403 S.E.2d 362

12 Va.App. 198

Dock HALL, Jr. v. COMMONWEALTH of Virginia.

Record No. 1321-88-3.

Court of Appeals of Virginia.

April 2, 1991.

James J. Angel (Thomas L. Phillips, Jr., Phillips, Phillips & Phillips, on brief), Lynchburg, for appellant.

Richard A. Conway, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and KEENAN and MOON, JJ.

KEENAN, Judge.

Dock Hall appeals his convictions for murder, robbery and use of a firearm in the commission of both robbery and murder. He raises five issues on appeal: (1) whether the trial court erred in allowing the victim's wife to testify to statements made by the victim prior to his death under the dying declaration exception to the hearsay rule; (2) whether the trial court erred in allowing a prosecution witness to testify to facts recalled after undergoing hypnosis; (3) whether the trial court erred in refusing to grant the instructions on hypnosis tendered by Hall; (4) whether the trial court erred in refusing to strike a juror for cause; and (5) whether the appeal bond set by the trial court was excessive.

We hold that the statements made by the victim prior to his death were admissible under the dying declaration exception to the hearsay rule. We also hold that the trial court erred in admitting into evidence the testimony of a prosecution witness where the witness' recollection of events was altered by hypnosis. However, we find that this error was harmless in light of our finding that there was overwhelming competent evidence admitted to establish the same fact as that shown by the inadmissible testimony. In addition, we find that the trial court did not err in denying the proposed instructions on hypnosis since they did not accurately state the law and were not supported by the evidence. Further, we find no error in the trial court's refusal to strike a juror for cause. Accordingly, the decision of the trial court is affirmed and we need not review whether the bond imposed pending appeal was excessive.

I.

This appeal arises from a robbery which occurred at a Fisca Gas Station on Timberlake Road in Lynchburg on December 24, 1987. Prior to his death, Glenn West, the station manager, was able to describe the events in question. West was waiting for his wife to pick him up at approximately 8:00 p.m. that evening when he noticed a man walking across the station's driveway. West asked the man if he needed help. The man responded by asking for West by name, inquiring whether he was the manager and whether he was able to open the safe. West told the man that he was the manager but that he was unable to open the safe because it had a time-delay lock on it.

The man then told West to open the safe or he would kill him and pulled out a gun that West believed was either a .22 or .25 automatic. West begged the man not to shoot him, told him again that he was unable to open the safe, and offered him $50 cash that he had in his pocket. The man told West that he would have to kill him and shot him in the stomach. The man then ran across the street to the Fort Cinema.

West dialed 911 from inside the station at approximately 8:14 p.m. He was taken to the hospital, where his wife remained with him until he was taken into surgery. While at the hospital, West asked his wife to say a prayer for him and then requested a minister, although his wife testified that he was not a religious person. Shortly thereafter, he wished his wife a Merry Christmas. When she told him that she would save Christmas until he got home, West told her that he would not see Christmas. He told her to be strong and take care of their daughter as well as she could. He also told her where to find their Christmas presents in his office. Although Mrs. West begged him not to die and to come home for Christmas, West again responded no. When the minister arrived, West told him that he wanted to be saved.

West was taken into surgery within forty-five minutes of his arrival at the hospital. He came out of surgery at 2:10 a.m. and died forty minutes later. The cause of death was determined to be a .25 caliber automatic gunshot wound to the abdomen.

Prior to undergoing surgery, West described his assailant as a young black man with short hair, 5'6"' to 5'7"', 160-170 pounds, no facial hair, and wearing a black jacket. In addition, he related to his wife and Officer McCane what had occurred at the station. He indicated that before he was attacked he saw a yellow van driving slowly up and down Timberlake Road. He recalled that the van had a sliding side door, a luggage rack on top, mag wheels and a CB antenna.

Several days later, Officer McCane received information that Diane Jones, an employee at the Fort Cinema, had some information about the robbery. McCane questioned Jones about the robbery on December 28, 1987. Jones told McCane that she had noticed a light yellow van with a luggage rack on top and a ladder at the rear parked under the Fort Cinema marquis, across the street from the Fisca station. She recalled that the van had colored lights circling its front license plate and that it was occupied by two males. Since she could not recall the license number, she agreed to undergo hypnosis to aid her recall.

Jones was hypnotized on December 29, 1987 by a clinical psychologist, Dr. Owens. The session lasted approximately one hour. Officer McCane accompanied Jones to the session and participated in it as an observer. Prior to the session, he told Owens that Jones had seen a light colored van which might be material to the police investigation. He did not, however, describe the van or give Owens the license number. Owens recorded the session, but the tape was for the most part inaudible.

Hall was arrested on January 22, 1988 and a search warrant was executed on a yellow Chevrolet van owned by James Ward which had a license number of HSV-828. Shortly thereafter, Jones contacted McCane and asked if he had the license number to the van. When McCane responded affirmatively, Jones asked him if the number was either HSV-828 or HSV-858, indicating that she had written those numbers down three hours after the session with Dr. Owens. She testified at a pre-trial hearing that at the time she called McCane she did not know that anyone had been arrested, although she was aware that people had been questioned and that the police had taken a van into custody. McCane testified that the van's license number was contained in a police file to which he had access prior to the time that Jones was hypnotized and prior to the time she called him with the number.

Steve Johnson, a juvenile, testified at trial that he participated in the robbery of the Fisca Gas Station. He stated that several days before Christmas, he and Tracey Brown were at Hall's home. Hall asked them if they wanted to make some money by robbing the Fisca Station, but they said no. Johnson and Brown again discussed robbing the station with Hall on Christmas Eve and arrangements were made for Hall and James Ward to pick up Johnson and Brown at approximately 7:00 p.m. After Ward and Hall arrived in Ward's van, they drove to the home of another individual named Bowling.

Once Bowling joined them, Ward drove the group to the Fort Cinema on Timberlake Road to plan the robbery. Ward parked the van on the side of the theatre, and Hall and Bowling discussed the robbery. Hall suggested that Bowling call West by name in the hopes that West would open the safe without any trouble. Ward then gave Bowling a .25 automatic. Hall told Bowling that, if it became necessary, he should shoot West.

Bowling got out of the van and headed toward the gas station. Ward drove the van from the cinema to a nearby church parking lot. Bowling returned shortly thereafter and indicated that he was unable to rob the store because several customers were there.

Hall asked Bowling if he would try again and Bowling returned to the store. Meanwhile, Ward drove the van past the Fisca station several times. Finally, Ward returned to the church parking lot, where Bowling came running up to the van. Bowling threw forty-five dollars in cash onto a table in the van and told the others that he had to shoot West. He said that he did not get any more money because West had told him that the safe had a time lock on it.

Hall took back the gun and unloaded it. He then divided up the money, and Ward and Hall drove Johnson, Bowling and Brown home. The day after Christmas, Hall told Johnson and Brown not to worry about the robbery because the only witness was dead. He also told them not to say anything to the police.

II.

The first question on appeal is whether the trial court erred in ruling that statements made by the deceased victim to his wife at the hospital prior to undergoing surgery were admissible under the dying declaration exception to the hearsay rule. It is well settled that in order for dying declarations to be admissible, "they must be shown to have been made when the declarant is under a sense of impending death, and without any expectation or hope of recovery." Batten v. Commonwealth, 190 Va. 235, 243, 56 S.E.2d 231, 235 (1949) (quoting Bull v. Commonwealth, 55 Va. (14 Gratt.) 613, 620 (1857)); see also Waller v. Commonwealth, 178 Va. 294, 306-07, 16 S.E.2d 808, 813 (1941), cert. denied, 316 U.S. 679, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942); Compton v. Commonwealth, 161 Va. 980, 984, 170 S.E. 613, 615 (1933). The burden is on the Commonwealth to prove that the decedent possessed the requisite belief and mental attitude at the time the alleged declaration was made. Batten, 190 Va. at 243, 56 S.E.2d at 235.

In the case before us, West was shot in the abdomen at approximately 8:14 p.m. on Christmas Eve. He was taken to the hospital, where he remained for approximately one hour prior to undergoing surgery. During this time, West exhibited great pain and repeatedly told his wife that he would not see Christmas and that she and his...