Perry v. Commonwealth of Va..

• Decision Date: 09 August 2011
• Docket Number: Record No. 1282–10–1.
• Citation: 712 S.E.2d 765,58 Va.App. 655
• Court: Virginia Court of Appeals
• Parties: George Thomas PERRYv.COMMONWEALTH of Virginia.

58 Va.App. 655

712 S.E.2d 765

George Thomas PERRY

v.COMMONWEALTH of Virginia.

Record No. 1282–10–1.

Court of Appeals of Virginia, Chesapeake.

Aug. 9, 2011.

J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.Alice T. Armstrong, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: ELDER, PETTY and ALSTON, JJ.ROSSIE D. ALSTON, JR., Judge.

Following a jury trial, George Thomas Perry (appellant) was convicted of two counts of attempted robbery and two counts of the use of a firearm in the commission of an attempted robbery. On appeal, appellant raises the following assignments of error: (1) the trial court erred in allowing a witness to testify regarding a victim's out-of-court statements under the excited utterance exception to the hearsay rule; (2) the trial court erred in allowing a witness to testify regarding a victim's out-of-court statements, on the grounds that this ruling violated appellant's Sixth Amendment right to confront his accuser; and (3) the trial court erred in denying appellant's motion for a mistrial, on the grounds that a juror fell asleep during the cross-examination of one of the victims. Upon review of the record, we find no error and affirm the convictions.

I. BACKGROUND

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).

On September 1, 2009, sixteen-year-old Quamon Wilson (Wilson) was “hanging out” with his cousin, Courtney Murray (Murray),¹ at Bowling Park Elementary School. The cousins had been sitting on the swings and talking for about an hour when Wilson noticed appellant, who was also sixteen years old at the time, an individual known as “Quan,” and a boy that Wilson did not know standing together on the playground. Appellant approached Wilson and Murray and asked them where they were from. Appellant then told the cousins that Quan wanted to fight Wilson. To that end, appellant claimed Quan had called Wilson a “bitch.” Wilson responded that he did not want to fight and that “there was no reason to fight him.” Thereafter, Quan approached appellant, Wilson, and Murray. Wilson, who knew Quan from having previously lived in the same neighborhood as him, asked Quan why he had called him a “bitch.” Quan denied calling Wilson any name.

Appellant then backed away, pulled a “9 millimeter” black, automatic handgun from his waistband, pointed it at Wilson and Murray, and asked Wilson and Murray, “What you got?” When Wilson and Murray stated that they did not have anything, appellant told Wilson “to stop playing or he [was] going to hit [Wilson] in the head.” Making good on the threat, appellant walked behind Wilson and hit him on the left side of his head with the gun. The impact left a “knot that was swollen” on Wilson's head.

Appellant backed away from Wilson and Murray, still pointing the gun at them. Fearful that appellant was planning on shooting him, Wilson attempted to hide behind the playground equipment. Appellant, still pointing the gun at the cousins and accompanied by Quan and the unidentified boy, then ran away from Wilson and Murray.

Scared, Wilson and Murray left the playground and ran to Wilson's house. At trial, Wilson estimated that it took “five, almost ten minutes” for the cousins to reach Wilson's home. When the cousins arrived, they “rushed in” and told Wilson's father, John Adams (Adams), what had occurred. After listening to the boys, Adams decided that he wanted to talk to appellant and the other boys involved in the incident. He, Wilson, and Murray drove in Adams' truck “around the community” until Murray spotted appellant and the other boys standing on the porch of a house on East Virginia Beach Boulevard. Adams pulled into a driveway adjacent to the house, opened his car door, and yelled to appellant, asking appellant to speak with him. Rather than replying, appellant and his companions ran away. Adams then called 911.

Norfolk Police Officer J. Williams was dispatched in response to Adams' call. Upon arrival, he spoke with Wilson, who reported what had occurred at the playground. Officer Williams could clearly see a “swollen lump” on Wilson's head, which appeared to be the result of a recent injury. After Wilson identified appellant as his attacker, Officer Williams detained appellant. Officer Williams did not recover a gun.

Appellant was charged with and eventually indicted on two counts of attempted robbery and two counts of use of a firearm in the commission of an attempted robbery.

Appellant's two-day jury trial began on January 28, 2010. On behalf of the Commonwealth, Wilson testified regarding the events at the playground and his family's subsequent successful efforts to locate appellant. At the conclusion of appellant's cross-examination of Wilson, the Commonwealth stated that it wished to conduct a redirect examination, but that it would like to bring a matter to the trial court's attention outside the presence of the jury. Once the trial court excused the jury from the courtroom, the following dialogue occurred:

[COMMONWEALTH]: ... I would ask the Court to admonish the jury to let us know if they need a break. The juror sitting on the very end here appears to be nodding off and [the Commonwealth's co-counsel] believes that she heard him snoring, which would create an issue since we don't have an alternate.

* * * * * *

THE COURT: All right. Well, with respect to the attentiveness of jurors, it's always an issue. We will certainly remind them, not with any specific direction to any particular juror, but we'll remind all jurors of what their oath is and that they are obligated to pay attention. If it continues to be an issue, we may have to deal with it specifically, but for right now, I'm satisfied it's going to be dealt with as just a generalized admonition.

Appellant raised no objection to the trial court's resolution of the circumstances and requested no other instruction or relief. When the jury returned, the trial court admonished the jury:

[L]adies and gentlemen of the jury, it's very important that we all pay very careful attention to everything that's being said. I know that you've had a long day already, but I do need to remind you to pay very close attention. Sometimes our attention can wane or be distracted and we can be preoccupied, but the trial is very important to those parties involved in it. And so, we need to make sure that everybody is paying very close attention.

Once again, appellant neither raised an objection nor requested another instruction or alternative relief.

The Commonwealth subsequently called Adams to testify. In response to the Commonwealth's question regarding the date of the offense, September 1, 2009, Adams testified:

September 1st, I had came [sic] home from work and I wasn't in the house but a couple minutes. So, I try to wind down, put my keys, and cell phone down, and everything. My nephew was visiting. At that point he had come in and my son was with him. They rushed in the house and told me—

At this time, appellant's trial counsel interposed a hearsay objection. The following exchange occurred:

[DEFENSE COUNSEL]: Your Honor, I would object on the grounds of hearsay—

[COMMONWEALTH]: Your Honor, at this point it's not being offered for the truth of the matter, and I think possibly it can be established as an excited utterance as exception to hearsay.

[DEFENSE COUNSEL]: Your Honor, with regard to excited utterance, this is happening, at minimum, ten minutes and at least one mile away from something else. I don't know why the individuals would remain so excited that the statement isn't responsive to something they are seeing immediately.

THE COURT: Having heard the testimony of the previous witness, I'm going to overrule your objection. You may answer the question, sir.

[COMMONWEALTH]: You were telling us what happened when your son and nephew came into the house.

[ADAMS]: As I was mentioning, my son and my nephew had come in the house and they had mentioned that they had been at Bowling Park and they had some altercation with some young guys.

[COMMONWEALTH]: Now, when you say “altercation,” what did they tell you happened?

[ADAMS]: Specifically, he said that one of the guys had a pistol, and he had been hit upside the head, and they had been robbed, and this type of nature.

[COMMONWEALTH]: Who had been hit by the gun?

[ADAMS]: My son Quamon Wilson.

[COMMONWEALTH]: Did you have a chance to look at your son when he came in the house?

[ADAMS]: I didn't examine him as far as looking at his head for any injuries or anything because at that point I didn't notice any type of blood or anything. If he had any kind of injuries, they were, I guess internal.

[COMMONWEALTH]: After they told you about that, what did you do?

[ADAMS]: Well, just being a parent, my instinct was to go and look for these guys, because they said they were in this location. And so we all got in my truck, my Jeep, and we rode around to the site, the playground where they were at, all this time, apparently, where this happened and we went around, just drove around the community there until, you know, we ran—I drove upon these young guys about a quarter—a couple blocks away from the playground where this all started at.

[COMMONWEALTH]: So, who is in the car with you?

[ADAMS]: At this point, myself, my son, and my nephew Courtney.

[COMMONWEALTH]: When you got to the house, what did you do?

[ADAMS]: We arrived to [sic] the house. At that point, I had asked my son, I said, “These guys on this porch look familiar to you?” And they was pointing and said, “Yes, Daddy[”]—My son said, “Yes, Daddy, that is the guy there.” And then pointed out the two or three guys that were...