Travis Jermaine Isaac v. Commonwealth of Va..

• Decision Date: 10 May 2011
• Docket Number: Record No. 0669–10–4.
• Parties: Travis Jermaine ISAACv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 255

708 S.E.2d 435

Travis Jermaine ISAAC

v.COMMONWEALTH of Virginia.

Record No. 0669–10–4.

Court of Appeals of Virginia, Alexandria.

May 10, 2011.

James K. Freeman (Dominique A. Callins; Kearney, Freeman, Fogarty & Joshi, PLLC, on briefs), Fairfax, for appellant.Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: HUMPHREYS, KELSEY and McCLANAHAN, JJ.KELSEY, Judge.

A jury found Travis Jermaine Isaac guilty of aggravated involuntary manslaughter in violation of Code § 18.2–36.1. Both before and during trial, Isaac unsuccessfully objected to the Commonwealth's evidence of a blood alcohol test showing Isaac's state of intoxication. On appeal, Isaac argues the trial court erred in admitting this evidence. We affirm without addressing the merits of his argument because Isaac introduced substantially similar evidence during his case in chief, thereby waiving his earlier objection and rendering harmless any alleged error.

I.

In March 2009, while driving eastbound in the westbound lanes of Interstate 495, Isaac ran head-on into a vehicle driven by Cristina L. Palese. Police officers and rescue teams immediately responded to the scene of the collision. One of the paramedics smelled alcohol inside Isaac's vehicle and on Isaac's person as he was transported by ambulance to the hospital. Virginia State Police Trooper Rosemary Daly found a bottle of vodka on the floorboard of Isaac's vehicle. At the hospital, Daly smelled alcohol on Isaac's clothing. The trooper informed Isaac at the hospital that he was under arrest for driving under the influence. Trooper Daly advised Isaac of the implied consent law and requested that the attending nurse obtain a blood sample. Test results revealed Isaac's blood alcohol content (BAC) was 0.16% by weight by volume. Isaac requested and received a second blood alcohol test. The second test resulted in a finding of 0.14% BAC by weight by volume.

Given Isaac's extensive injuries and the ongoing medical attention he was then receiving, Trooper Daly did not handcuff or otherwise physically restrain Isaac in the hospital. Instead, state troopers maintained an around-the-clock custodial presence outside Isaac's room. While Isaac was still in the hospital, Trooper Daly appeared before a local magistrate and obtained warrants for his arrest. Eight days later, officers transferred Isaac from the hospital directly into the Fairfax County Adult Detention Center.

Palese died from her injuries arising out of the collision. A grand jury indicted Isaac for aggravated involuntary manslaughter, alleging he caused Palese's death while “driving under the influence” and acting in a manner “so gross, wanton and culpable as to show a reckless disregard for human life.” Code § 18.2–36.1(A), (B). Prior to trial, Isaac sought to suppress the 0.16% BAC certificate of analysis on the ground that Trooper Daly did not have probable cause to make a DUI arrest.

After the trial court denied the motion to suppress, Isaac argued a separate motion in limine asserting an alternative ground to exclude the same BAC certificate of analysis. Citing Bristol v. Commonwealth, 272 Va. 568, 636 S.E.2d 460 (2006), Isaac argued he was never actually arrested because Trooper Daly never physically touched him after declaring him under arrest. See Defendant's Motion in Limine at 2 (Oct. 30, 2009). In response, the Commonwealth argued the arresting officer's custodial confinement of Isaac within his hospital room constituted a common law arrest. See Commonwealth's Opp. to Motion in Limine at 5 (Nov. 3, 2009). In a detailed letter opinion, the trial court rejected Isaac's argument, ruling

to extend the Bristol analysis to cover the facts of this case—as Mr. Isaac urges—would create a hazardous requirement that a law enforcement officer intrude into a sanitary operating room, thereby interrupting the medical personnel and potentially endangering a suspect's life, merely to physically touch an unconscious suspect for the sole purpose of ensuring the “legality” of an “arrest.” This Court refuses to require such an ill-advised and dangerous gesture in interpreting Code § 18.2–268.2.

Letter Op. at 6–7 (Dec. 31, 2009) (Klein, J.).¹

Consistent with the trial court's rulings, the Commonwealth introduced into evidence the 0.16% BAC certificate of analysis. After the Commonwealth rested, Isaac offered into evidence during his case in chief the independent test results showing a 0.14% BAC. Isaac also presented the testimony of a toxicologist who restated the findings contained in the Commonwealth's 0.16% BAC certificate and commented upon Isaac's 0.14% BAC certificate. The toxicologist claimed the difference between the two findings rendered both certificates per se unreliable.

An agreed jury instruction advised the jurors that they had “received evidence of the alleged blood alcohol content” and could “give this evidence such weight as you see fit in determining the issue of guilt or innocence.” The trial judge also explained: “If at the time that a person was operating a motor vehicle, that person's blood alcohol level was .08 or higher, you are permitted to infer that such a person was then under the influence of alcohol unless from all the evidence you have a reasonable doubt that the person was under the influence of alcohol.” See Code § 18.2–269(A)(3). With both BAC certificates in evidence, the jury convicted Isaac of aggravated involuntary manslaughter under Code § 18.2–36.1(A), (B) (causing death while “driving under the influence” and acting in a manner “so gross, wanton and culpable as to show a reckless disregard for human life”).

II.

On appeal, Isaac challenges the trial court's denial of his motions to exclude from evidence the Commonwealth's 0.16% BAC certificate. He was either arrested without probable cause or he was never arrested at all, Isaac argues. Both arguments, Isaac concedes, seek only to defeat the admission into evidence of the Commonwealth's 0.16% BAC certificate of analysis. See Oral Argument Audio at 18:55 to 20:10. We see no reason to decide these issues, however, given that Isaac introduced substantially similar evidence during his case in chief.

Under Virginia law, a litigant waives an objection to evidence when he introduces “evidence dealing with the same subject as part of his own case-in-chief.” Pettus v. Gottfried, 269 Va. 69, 79, 606 S.E.2d 819, 825 (2005) (emphasis added) (citing Drinkard–Nuckols v. Andrews, 269 Va. 93, 102–03, 606 S.E.2d 813, 819 (2005)). Put another way, when a litigant “unsuccessfully objects to evidence that he considers improper and then introduces on his own behalf evidence of the same character, he waives his earlier objection to the admission of that evidence.” Combs v. Norfolk & W. Ry., 256 Va. 490, 499, 507 S.E.2d 355, 360 (1998). The waiver applies to criminal and civil cases, see, e.g., Hubbard v. Commonwealth, 243 Va. 1, 9, 413 S.E.2d 875, 879 (1992); Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638–39 (1970),² and affects evidentiary objections based on constitutional as well as statutory and common law grounds, see, e.g., Bynum v. Commonwealth, 28 Va.App. 451, 506 S.E.2d 30 (1998) (holding a defendant, by testifying to the substance of the statement in his case in chief, waived his earlier Miranda objection to the prosecution's admission of statement).

This same-evidence principle has none of the weaknesses of judicial novelty, for it has stood in roughly the same form for well over a century. See New York Life Ins. Co. v. Taliaferro, 95 Va. 522, 523, 28 S.E. 879, 879 (1898); Va. & Tenn. Coal & Iron Co. v. Fields, 94 Va. 102, 113, 26 S.E. 426, 426–27 (1896). Though explained in different ways, the practical effect of the principle remains clear: “Some courts so hold because the error is harmless, and others because the subsequent introduction of the same evidence is a waiver of the objection. Whether it be placed upon one ground or the other, the result is the same.” Taliaferro, 95 Va. at 523, 28 S.E. at 879.³

An exception to the same-evidence principle exists for evidence elicited “during cross-examination of a witness or in rebuttal testimony.” Zektaw v. Commonwealth, 278 Va. 127, 134, 677 S.E.2d 49, 52–53 (2009) (quoting Drinkard–Nuckols, 269 Va. at 102, 606 S.E.2d at 818). ⁴ For purposes of the same-evidence principle, rebuttal evidence should not be confused with, or deemed congruent to, the entirety of a criminal defendant's case in chief—which, by its very nature, seeks to rebut (using the term in the vernacular) the Commonwealth's evidence. If the rebuttal exception included all evidence presented during the defendant's case in chief, the exception would swallow the rule. Almost everything covered by the waiver would likewise be protected by the exception. To adopt such an anomalous interpretation of the doctrine would put us in conflict with numerous Virginia cases.

In the context of the same-evidence principle, Virginia courts have applied the rebuttal exception in very limited circumstances. For example, in Snead v. Commonwealth, 138 Va. 787, 121 S.E. 82 (1924), the Commonwealth introduced into evidence an incriminating letter allegedly sent by the victim to the defendant. The defendant's counsel cross-examined the victim and, in his case in chief, the defendant took the stand and testified he knew nothing about the letter. Id. at 801, 121 S.E. at 86. He did not know of the letter's alleged existence “until it was introduced in evidence on the trial.” Id. The defendant did not introduce the letter in his case in chief to prove some point he wanted to make, or offer an alternative letter allegedly received from the victim, or explain that he received the letter but interpreted it differently than the prosecutor. Given the limited nature of the defendant's testimony, Snead held the defendant did not waive his earlier objection.

The...