Jones v. Com.

• Decision Date: 02 October 2007
• Docket Number: Record No. 1801-06-4.
• Parties: James Edward JONES v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

650 S.E.2d 859

50 Va. App. 437

James Edward JONES v. COMMONWEALTH of Virginia.

Record No. 1801-06-4.

Court of Appeals of Virginia, Alexandria.

October 2, 2007.

Blair D. Howard (Howard, Morrison, Howard & Whelan, on briefs), Warrenton, for appellant.

Rosemary V. Bourne, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: ELDER and BEALES, JJ., and Retired Judge BENTON.^*

BEALES, Judge.

James Edward Jones (appellant) was charged with aggravated malicious wounding (Code § 18.2-51.2), use of a firearm in the commission of a felony (Code § 18.2-53.1), and carrying a concealed weapon (Code § 18.2-308(A)). The jury convicted appellant of unlawful wounding, pursuant to Code § 18.2-51,¹ a lesser-included offense of aggravated malicious wounding, and of carrying a concealed weapon. The trial court imposed a sentence of four years of incarceration for the unlawful wounding conviction and twelve months of incarceration plus a fine for the carrying a concealed weapon conviction. On appeal, appellant argues that the trial court committed reversible error when it refused to play for the jury a videotape of his statement to the police. We hold the trial court erred, and we reverse the convictions and remand for a new trial if the Commonwealth is so inclined.

I. Background

Appellant shot his neighbor, Mr. Finnegan, with whom he had been arguing. After the shooting, Detective Leonard interviewed appellant. The interview was videotaped.

The Commonwealth did not introduce the transcript or the videotape of appellant's statement at trial. Although Detective Leonard testified about his investigation of the shooting he did not discuss the videotaped statement given by appellant. When testifying on his own behalf, appellant related the events that led to the shooting and mentioned that he voluntarily gave a statement to Detective Leonard.

On cross-examination, the prosecutor asked appellant about inconsistencies between his statement to Detective Leonard and his testimony at trial. Although appellant testified that he was concerned about Finnegan brandishing an axe just prior to the shooting, appellant admitted he said nothing about the axe in his statement to the police. He explained that he "didn't tell everything that happened" and that he "was under extreme duress in that interview." The Commonwealth asked if appellant mentioned the axe during his testimony to justify arming himself with a gun, to which appellant replied no.

Appellant also testified in cross-examination that he did not say anything in his statement to the police about his wife and stepdaughter seeing any of the events leading to the shooting. He explained:

I couldn't tell everything in my mind that happened at the time. I couldn't say everything. I was just under duress. I even asked the detective I'm under duress and hold on a little bit; my mind was confused. I was devastated over this. I was near tears. I couldn't think correctly. There was a lot of things I didn't say.

Appellant also explained that he "didn't recall it at the time." The prosecutor then asked, "you were very keyed on, right after you shot Mr. Finnegan, of all the things that you needed to say and that you needed to do, right?" Later, the prosecutor went back to this inconsistency:

Q. Right. And, yet, when you talked to Detective Leonard, you have two witnesses to this crime that you say was perpetrated upon you, and you didn't mention to Detective Leonard that your wife and your daughter witnessed the whole attack?

A. No, sir. There's a lot of things that I didn't say.

Q. And the reason is, sir, is because you knew that they witnessed it, but you knew that they witnessed you shooting an unarmed man without justification, that's why you didn't mention to Detective Leonard, isn't that true, sir?

A. They testified to what they saw.

Q. And, in fact, you were trying to protect them from having to give a statement about what they saw that you did, isn't that true, sir?

A. That's not true, sir, at all.

In the cross-examination, the prosecutor also asked:

Q. This idea about [Finnegan] having some hand in his pocket is one of the things that you felt you needed to say when you first talked to Detective Leonard, isn't that true, sir?

A. Sir, I only stated under duress what I saw.

Q. In fact, the story that you were trying to give Detective Leonard was he was coming at you, he had something in his pocket, I didn't know, it could have been a gun, and, so, that — I turned to fire.

A. I never said that, sir. I never said it could have been a gun. I never said it could have been anything. I only stated he put his hand in his pocket.

Q. Well, why were you suggesting that he put his hand in his pocket?

A. That's because it's what he did. I only testified to what he did. I didn't say I seen a gun. I didn't say I seen a weapon. I didn't say that he did anything except put his hand in his pocket. That's what happened.

On redirect, appellant's counsel asked appellant about the content of the statement given to the detective. Appellant explained:

I only answered the questions that Detective Leonard asked me. I didn't volunteer information. He interviewed me and I answered the questions that he asked me. He did not ask me anything about an axe, nor did he ask me about my wife and daughter. So I didn't answer that question. I only answered precise questions that he asked me.

On re-cross-examination, the prosecutor asked, "You said he never asked you about an axe, but he did ask you why you went to your truck and got your gun, right?" Appellant answered that he "believe[d]" that he did. Then the prosecutor asked, "You never said one thing to Detective Leonard about putting your hand up and you backing up; you never said one thing during that interview, isn't that true, about that?" Appellant responded, "I don't recall, sir, whether I did or whether I didn't."

Neither the prosecutor nor appellant's counsel attempted to introduce the videotaped statement at the conclusion of appellant's testimony.² Instead, when his last witness finished testifying, appellant's counsel asked that the videotape be played for the jury, explaining:

[The prosecutor] opened the door when he cross examined my client. And I think that the videotape should be shown to the jury. It shows the entire interview that he cross examined — he raised his voice and he said you didn't mention the axe, you didn't mention your daughter, you didn't mention this; and then I tried to get into things and I just think, since he opened all that up and cast all this — impugned my client's credibility about the interview that I now should be —

The judge then interrupted and asked why the videotape was admissible when everyone agreed that the axe and appellant's wife and stepdaughter were not mentioned in the statement. Appellant's counsel explained:

[Y]ou've got to look at this videotape, because it wasn't — These sort of questions were never asked. He had him on the stand for an hour and a half. This detective asked questions, but primarily he was directing the attention with what happened down at the roadway. He didn't concentrate up on what happened in the driveway. He didn't even know that there was something going on at the driveway involving the mother and the daughter. The detective didn't even know that, so he didn't question him about that.

* * * * * * It's totally unfair for him to say you didn't do this, you didn't mention that, and the jury not be able to see the context —

At this point the prosecutor interrupted to point out that appellant's counsel was "talking loud enough for the jurors to hear." When appellant's counsel tried to continue his argument, the trial court ruled that the tape was inadmissible hearsay.

After the jury was excused for the day, the parties argued again about the admissibility of the tape. Appellant's counsel explained:

Well, all I'm asking is for the jury, who heard this vigorous cross examination about the videotape and what he said and what he didn't say, I'm just asking the jury to say take a look at it and put it in context and see what questions he was asked. That interview — the questions — many things were asked of him today that were not asked on that videotape.

He further argued that part of the statement was a prior consistent statement made prior to any motive to fabricate and, therefore, was admissible. Following the prosecutor's response, the judge said, "I think I've seen a copy of it. I think a copy of it's in the file . . . . And I think for — and — and I'll take another look at it. At this point I'm going to stand by my ruling."

The jury found appellant guilty of the lesser-included offense of unlawful wounding and of carrying a concealed weapon. After the trial, appellant's counsel asked the court to set aside the verdict, based on the court's refusal to show the videotape to the jury. The trial court said it did not believe appellant's testimony was impeached and denied the motion.

Appellant noted his appeal, asking this Court to overturn his convictions based on the trial court's refusal to play the videotape for the jury.

II. Analysis

A. Preservation of the Issue for Appeal

The Commonwealth argues that appellant did not preserve this issue for appeal because his arguments were not fully developed until his post-trial motion and, therefore, were not timely. The Commonwealth correctly explains that post-trial motions regarding admission of evidence generally are not timely, especially after the jury has reached a verdict and been excused. See, e.g. Poole v. Commonwealth, 211 Va. 258, 260, 176 S.E.2d 821, 823 (1970) ("An accused may not wait until the Commonwealth has rested its case before challenging the admissibility of identification evidence . . . because whether such evidence is admissible is a question involving inquiry by the trial court before the evidence is presented to the jury."). In this case,...