Neal v. Com.

• Decision Date: 08 December 1992
• Docket Number: No. 1397-91-2,1397-91-2
• Citation: 15 Va.App. 416,425 S.E.2d 521
• Court: Virginia Court of Appeals
• Parties: James Edward NEAL, II, v. COMMONWEALTH of Virginia. Record

Page 521

425 S.E.2d 521

15 Va.App. 416

James Edward NEAL, II, v. COMMONWEALTH of Virginia.

Record No. 1397-91-2.

Court of Appeals of Virginia.

Dec. 8, 1992.

Susan D. Hansen, Richmond, for appellant.

Kathleen B. Martin, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, COLEMAN, and FITZPATRICK, JJ.

BENTON, Judge.

James E. Neal, II, appeals his conviction for possession of heroin with intent to distribute. He contends (1) that the trial judge erroneously ruled that a search warrant affidavit was inadmissible as evidence, and (2) that the trial judge's conduct denied him a fair and impartial trial. For the reasons that follow, we affirm the conviction.

I.

The evidence before the jury proved that at 2:00 p.m. on November 1, 1990, the City of Richmond police obtained a warrant to search Dinetta Riley's apartment on Stockton Street. Forty minutes later, when the police arrived at the apartment to execute the warrant, they found Neal sitting on the front porch reading a book and listening to a portable radio. Riley was in an upstairs bedroom. Immediately inside the front door of the apartment, the police found a duffel bag with its drawstring pulled closed and a sweater lying over the top of it. The duffel bag contained a bus ticket for a round trip from New York City to Richmond, men's clothing, and a small radio pouch. The radio pouch, which was zipped closed, contained twenty-one packets of heroin, $531 in cash, Neal's personal papers, and two martial arts throwing stars. While searching other areas of the apartment, the police found packages of cocaine. The police arrested Neal for possession of the heroin with intent to distribute and arrested Riley, the lessee of the apartment, for possession of the cocaine.

During the defense case, Neal's counsel called as a witness the officer who signed the search warrant affidavit. During the course of the officer's testimony, Neal's counsel offered the search warrant and affidavit as an exhibit. Although the Commonwealth's attorney stated no objection when Neal's counsel first offered the affidavit as an exhibit, the trial judge initiated the following exchange after the exhibit was offered:

[NEAL'S COUNSEL]: Your Honor, at this time I would like to introduce the search warrant into evidence.

THE COURT: I don't know the purpose of it?

[NEAL'S COUNSEL]: Sir?

THE COURT: I don't know the purpose of introducing it.

[NEAL'S COUNSEL]: The purpose for introducing it--well, it will become clearer after the defendant testifies.

THE COURT: We will see what the defendant says.

[NEAL'S COUNSEL]: I would prefer that the defendant testify rather than I testify for him.

THE COURT: Well, after he testifies you can call the officer back. Maybe then I will know, too.

[NEAL'S COUNSEL]: All right. We will do it that way.

THE COURT: All right.

[NEAL'S COUNSEL]: I am just attempting to--note my exception--I am attempting to introduce the search warrant at this time, Your Honor. I have no other questions of the officer.

Neal was then called as a witness and testified that he resided in New York but was planning to move to Richmond. He left New York by bus on October 31, 1990, and arrived in Richmond about 12:30 a.m. on November 1. Neal testified that when the bus was in Washington, D.C., he was stopped by a police officer who asked to search his bags. He said the officer found no contraband and permitted Neal to continue his trip.

Neal further testified that Riley met him at the bus station and took him to her apartment, where he took a shower and went to sleep in the living room. He said he was awakened when someone knocked at the door around 3:00 a.m. and spoke with Riley. Neal stated that he left his duffel bag at the apartment at 10:00 a.m. that morning and went away with Riley's niece. Before he left, two women and a man came to the apartment. When Neal and Riley's niece returned to the apartment about 12:30 p.m., Riley was alone in the house. Riley spoke with her niece, and both women quickly left the apartment. Neal testified that the man who had come to the apartment earlier that morning came again. When the man left, another man arrived. Neal testified that he decided to go back to New York because the people coming in and out of the apartment made him uncomfortable. He said he was waiting for Riley's niece to return when the police arrived at the apartment. Neal testified that the money in the duffel bag represented his earnings as a bike messenger and that all the items in the duffel bag, except the drugs, were his.

At the conclusion of Neal's testimony, his counsel again offered the search warrant. When the Commonwealth objected that it was hearsay, the trial judge again asked, "What [is] the purpose of it ...?" To which Neal's counsel responded, "Well, I think that would go to whether it is the weight or what weight the Court feels it should be afforded. It would be a question for the jury to decide." The trial judge admitted the search warrant but not the affidavit. The affidavit was placed in the record as a rejected exhibit. ¹

II.

Generally, when a specific objection is made to evidence or when inquiry is made by the trial judge concerning the purpose of evidence, the proponent of the evidence has the burden of establishing its admissibility. See 1 Wigmore On Evidence §§ 14.1, 17, and 18 (Tiller's rev. 1983). Neal's counsel had the opportunity on two occasions to address the relevance and admissibility of the warrant and affidavit and, on each occasion, failed to do so. ² After Neal's counsel offered the documents as evidence at the conclusion of the defense case, the Commonwealth objected that the document, which recited statements from an informant, was hearsay.

As a general rule, hearsay evidence is incompetent and inadmissible. Coureas v. Allstate Ins. Co., 198 Va. 77, 83, 92 S.E.2d 378, 383 (1956).

"Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter."

Stevenson v. Commonwealth, 218 Va. 462, 464-65, 237 S.E.2d 779, 781 (1977) (quoting McCormick on Evidence § 246, at 584 (2d ed. 1972)). The party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility. Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984). "Affidavits are not generally admitted as a hearsay exception solely because they are affidavits." Charles E. Friend, The Law of Evidence in Virginia § 249 (3d ed. 1988). The affidavit that was rejected by the trial judge in this case primarily contained out-of-court statements that the officer said were made by an informant.

On appeal, Neal argues that the affidavit was admissible because (1) it supported and corroborated his defense that he was falsely accused of the offense by the informant or some other person; (2) the trial judge was precluded by Code § 19.2-56 and Lane v. Commonwealth, 223 Va. 713, 292 S.E.2d 358 (1982), from severing the affidavit from the search warrant and admitting only the search warrant; (3) the principle of unreliability undergirding the hearsay rule was not applicable in this case because the magistrate had determined that the informant was reliable and credible; and (4) the affidavit was admissible under the public document exception to the hearsay rule. The Commonwealth argues that Neal failed to assert any of these positions at trial in support of admitting the affidavit. In addition, citing Tickel v. Commonwealth, 11 Va.App. 558, 400 S.E.2d 534 (1991), the Commonwealth argues that the affidavit was hearsay because it was offered to prove the truth of the informant's out-of-court statements, id. at 564, 400 S.E.2d at 538, and because the affidavit did not satisfy the official documents exception. See id. at 567, 400 S.E.2d at 539.

In the trial court, Neal's counsel failed to offer any hypothesis supporting admissibility of the affidavit. When Neal's counsel offered the evidence the second time, she had been forewarned that the trial judge was concerned about its admissibility. The statement that the document is offered for "what weight the Court feels it should be afforded" does not address grounds of admissibility. "[V]ague protestations against excluding the evidence were insufficient to assist the trial judge in making a rational determination of its admissibility." Wright v. Hartford Accident & Indem. Co., 580 F.2d 809, 810 (5th Cir.1978).

When an objection identifies the rule of evidence on which admission or exclusion depends, the proponent ordinarily need not do more to preserve error than offer the evidence. But when the objection hearsay in this case, does not focus on the specific issue presented on review, here the applicability of [a specific] exception, error is not preserved [when the evidence is excluded] unless the...