Alfred Gilliam, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 7, 2014
• Docket: 1254121
• Status: Unpublished

Opinion

VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 7th day of January, 2014. UNPUBLISHED

Alfred Gilliam, Jr., Appellant,

against Record No. 1254-12-1 Circuit Court Nos. CR12000878-00, CR12000878-01, CR12000878-03 and CR12000878-04

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing

Before Judges Alston, McCullough and Senior Judge Clements

On December 17, 2013 came the appellee, by the Attorney General of Virginia, and filed a petition

praying that the Court set aside the judgment rendered herein on December 3, 2013, and grant a rehearing

thereof.

On consideration whereof, the petition for rehearing is granted, the mandate entered herein on

December 3, 2013 is stayed pending the decision of the Court, and the appeal is reinstated on the docket of

this Court.

Pursuant to Rule 5A:35(a), the respondent may file an answering brief within 21 days of the date of

entry of this order.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court

Deputy Clerk COURT OF APPEALS OF VIRGINIA

Present: Judges Alston, McCullough and Senior Judge Clements UNPUBLISHED

Argued at Chesapeake, Virginia

ALFRED GILLIAM, JR. MEMORANDUM OPINION BY v. Record No. 1254-12-1 JUDGE ROSSIE D. ALSTON, JR. DECEMBER 3, 2013 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Charles E. Poston, Judge

J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Alfred Gilliam, Jr. (appellant) appeals his convictions for burglary in violation of Code

§ 18.2-91, possession of burglarious tools in violation of Code § 18.2-94, petit larceny third or

subsequent offense, in violation of Code §§ 18.2-96 and -104, and damage of property over

$1,000 in violation of Code § 18.2-137. On appeal, appellant alleges that the trial court “erred in

admitting hearsay testimony as to the cost of repairs to correct damage to the house, such

testimony being offered for the truth of the assertion and not being otherwise admissible under

any recognized exception to the hearsay rule.” We hold that the testimony as to the cost of

repairs to correct the damage to the house was inadmissible hearsay and therefore, we reverse

appellant’s conviction for damage of property over $1,000 in violation of Code § 18.2-137 and

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. remand to the trial court for a new trial on misdemeanor property damage, should the

Commonwealth be so advised.

I. Background1

Gene Gillespie was the caretaker of the subject property located at 1742 Willow Drive in

Norfolk, Virginia in 2012 (“the property”). Gillespie went by the property, owned by Norfolk

Collegiate School, as part of his regular daily routine. On February 7, 2012, Gillespie visited the

property and did not notice anything out of the ordinary or missing. There were no repairs being

done to the house at the time and therefore no tools or workers were on the premises. On

February 8, 2012, a concerned neighbor called the police to report an apparent burglary at the

property. Officers Apollo Lopez and Michael Evens responded to the scene and called for

backup. Officer John Torres, a K-9 unit officer also responded. When the officers entered the

property they found appellant standing on top of a toilet in one of the bathrooms. The officers

then observed a bag of tools and copper and saw that the hot water heater had been removed.

The officers arrested appellant at that time. After appellant’s arrest, Norfolk detective Kevin

Barnes arrived at the property and went through the house. Detective Barnes noted that the front

door had been kicked in, the hot water heater had been removed, and observed two bags filled

with various tools, copper piping, and some clothing in the house.

A grand jury indicted appellant for burglary in violation of Code § 18.2-91, possession of

burglarious tools in violation of Code § 18.2-94, grand larceny in violation of Code § 18.2-95,

petit larceny, third or subsequent offense, in violation of Code §§ 18.2-96 and -104, and damage

of property over $1,000 in violation of Code § 18.2-137. A bench trial commenced on May 2,

2012, during which the Commonwealth called Gillespie to testify to the cost of repairs to the

1 As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this appeal. -2- property. On direct examination, Gillespie testified that the cost of repairs to the property was

$3,000; however he did not then testify how he knew the costs of those repairs. When

questioned further on cross-examination, Gillespie testified as follows:

Q You didn’t over see it yourself. Someone else did?

A The repairs?

Q Right.

A I get calls of what repairs need to be done, but the management company oversees them.

Q Okay. So you’re just telling us what you were told about the repairs?

A I’m telling you what I saw that was broken, and that actually meshes with what the management company said needed to be repaired.

At that time, appellant’s counsel objected to the testimony on direct as to the $3,000 costs of

repairs arguing “[w]hen [Gillespie] said it [on direct], it didn’t sound like hearsay, but when he

said it now, it is hearsay.” The trial court overruled the objection and found appellant guilty of

burglary, possession of burglarious tools, petit larceny third offense, and damage of property

over $1,000 on May 21, 2012.2

Appellant noted his appeal on July 12, 2012. On July 24, 2012, the trial court sentenced

appellant to five years’ imprisonment for burglary and suspended imposition of a sentence for

ten years for possession of burglary tools, petit larceny third offense, and damage to property

over $1,000.3 This appeal followed.

2 The trial court nolle prosequied the grand larceny charge on the Commonwealth’s motion. 3 The sequence of dates noting when the appellant noted his appeal and when the trial court entered the sentencing order is stated correctly and is of no significance to the resolution of the matters presented. -3- II. Analysis

On appeal, appellant argues that the trial court erred in admitting hearsay testimony as to

the cost of repairs for damage to the property because Gillespie did not have personal knowledge

of the cost of repairs and his testimony as to what the management company told him regarding

the cost was not admissible under any recognized exception to the hearsay rule.

A. Preservation of Issue for Appeal

As a preliminary matter, the Commonwealth argues that appellant did not properly

preserve his hearsay objection on appeal because he did not timely object to Gillespie’s

testimony as to the cost of repairs. Rule 5A:18 provides: “No ruling of the trial court . . . will be

considered as a basis for reversal unless an objection was stated with reasonable certainty at the

time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the

ends of justice. . . .”

As a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court to preserve the issue on appeal. Not just any objection will do. It must be both specific and timely - so that the trial judge would know the particular point being made in time to do something about it.

Thomas v. Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted on reh’g en

banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).

The main purpose of requiring timely, specific objections is to afford the trial court an

opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and

reversals. “‘To be timely, an objection must be made when the occasion arises – at the time the

evidence is offered or the statement made.’” Kovalaske v. Commonwealth, 56 Va. App. 224,

229, 692 S.E.2d 641, 644 (2010) (quoting Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347

S.E.2d 167, 168 (1986)). However, “[i]n some instances it will not be immediately apparent that

the evidence is inadmissible or is being offered for an improper purpose. In such circumstances,

-4- an objection is timely if made as soon as the grounds for objection become apparent.” Charles E.

Friend & Kent Sinclair, The Law of Evidence in Virginia § 2-3[b] (7th ed. 2012). “[I]t has been

held that – if the objectionable nature of the evidence is not immediately obvious – the objection

is still considered timely if it is made ‘as soon as the dangerous drift of the examination becomes

apparent.’” Id. at § 2-2[b] (quoting Weimer v. Commonwealth, 5 Va. App. 47, 57, 360 S.E.2d

381, 386 (1987)); see also Bitar v. Rahman, 272 Va. 130, 140, 630 S.E.2d 319, 324-25 (2006)).

In Vasquez v. Mabini, 269 Va. 155, 158, 606 S.E.2d 809, 810 (2005), the plaintiff

brought a wrongful death suit against the defendants for the death of Tamara Mabini, the

plaintiff’s wife. At trial, the plaintiff presented the testimony of Richard B. Edelman, about the

expected loss of income and economic value of the loss of the decedent’s services, protection,

care, and assistance. Id. at 159, 606 S.E.2d at 811. Edelman testified as to the decedent’s lost

income and benefits based on the assumption that the decedent would have found full-time

employment the day after the accident that killed her at the rate of $8/hour, despite the fact that

she had been working part-time for $8/hour for the three months preceding the accident and

seeking full-time work. Id.

The defendants objected to these and other assumptions by Edelman, and the trial court

overruled their objections. Following a verdict for the plaintiff, the defendants appealed. On

appeal, the plaintiff argued that the defendants waived any objection to Edelman’s testimony

because they did not timely object prior to trial pursuant to the court’s scheduling order. Id. at

161, 606 S.E.2d at 812. The Supreme Court of Virginia held that the defendants’ failure to file

pre-trial objections to Edelman’s proposed testimony did not constitute a waiver because the

summary of Edelman’s testimony filed by plaintiff did not contain the specifics of his testimony

and would not have given the defendants any reason to object. Id. The Court further found that

the plaintiff’s direct examination of Edelman did not reveal his reliance upon the unsupported

-5- assumptions that underlay his opinion; cross-examination was necessary to bring these matters to

light. After a brief redirect, the defendants moved to strike Edelman’s testimony. Id. at 162, 606

S.E.2d at 813. The Court held that under the circumstances, the defendants did not waive their

objection to Edelman’s testimony because at the first opportunity, after the flaws in the expert

testimony had become apparent on cross-examination, the defendants moved to strike it. Id. at

162-63, 606 S.E.2d at 813.

Similarly in the case at bar, given the circumstances of Gillespie’s testimony, appellant’s

objection was timely. On direct examination, Gillespie did not then testify as to how he knew

the total costs of repairs would be $3,000. At that time, it was not reasonably foreseeable to

appellant that Gillespie’s testimony might qualify as inadmissible hearsay. It was not clear until

cross-examination that Gillespie’s testimony as to the cost of repairs was partially based on

information received from the property management company. Once it became evident that

Gillespie based his testimony on information provided to him by the property management

company, appellant’s counsel promptly objected. Therefore, based on the circumstances of this

case and the manner in which the testimony was elicited, we hold that appellant’s objection

claiming Gillespie’s testimony was hearsay was timely and the issue properly preserved for this

appeal.

B. Standard of Review

“Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom.” Crews v. Commonwealth, 18 Va. App. 115, 117, 442 S.E.2d 407, 408 (1994).

“‘The admissibility of evidence is within the broad discretion of the trial court, and a ruling will

not be disturbed on appeal in the absence of an abuse of discretion.’” Id. at 118, 442 S.E.2d at

409 (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).

-6- C. Admissibility of Gillespie’s Testimony as to Cost of Repairs

We hold that Gillespie’s testimony as to the cost of repairs to the property constituted

inadmissible hearsay.

Hearsay is “‘testimony given by a witness who relates not what he knows personally, but

what others have told him or what he has heard said by others. ’” Bowman v. Commonwealth,

28 Va. App. 204, 209, 503 S.E.2d 241, 243 (1998) (quoting Cross v. Commonwealth, 195 Va.

62, 74, 77 S.E.2d 447, 453 (1953)). “‘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.’” Tatum v. Commonwealth, 17 Va. App. 585, 588, 440 S.E.2d 133, 135

(1994) (quoting Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977)).

“Determining whether a statement is offered to prove the truth or falsity of the matter asserted

requires an analysis of the purpose for which the statement is offered into evidence.” Swain v.

Commonwealth, 28 Va. App. 555, 559, 507 S.E.2d 116, 118 (1998).

A person familiar with property can estimate its value. Walls v. Commonwealth, 248 Va.

480, 483, 450 S.E.2d 363, 365 (1994) (“[T]he general rule is that opinion testimony of a

nonexpert, who is not the owner of the personal property in question, is admissible upon the

subject of property value, provided the witness possesses sufficient knowledge of the value of

the property or has had ample opportunity for forming a correct opinion as to value.”); see also

Burton v. Commonwealth, 58 Va. App. 274, 282, 708 S.E.2d 444, 448 (2011). This rule does

not, however, dispose of the requirement that a person testify based on his personal knowledge

and not on hearsay information provided by a third party.

In the present case, while Gillespie had personal knowledge of the damage done to the

property, he did not have personal knowledge of the cost to repair that damage. Rather, he

-7- testified that the information as to the cost of the repairs was entirely based upon the amount

provided to him by the property management company. Further, the record does not indicate

that Gillespie, as the property’s caretaker, paid for the repairs on behalf of his employer, and on

that basis acquired personal knowledge of the cost of the repairs. Thus, his observation of the

damage to the property corroborated the $3,000 figure; however it did not provide an

independent basis for the cost of repairs. In short, his testimony concerning what the

management company told him constitutes an out-of-court statement offered for the truth of the

matter asserted.

We addressed a similar situation in an unpublished opinion, Brown v. Commonwealth,

No. 2825-07-1, 2009 Va. App. LEXIS 30 (Va. Ct. App. Jan. 27, 2009).4 In Brown, the defendant

damaged but did not total Ms. Washington’s vehicle. Id. at *2-3. Ms. Washington testified that

the cost to repair her vehicle was $1,600, based on an estimate from a repair shop. Id. at *4. The

defendant objected to that testimony as hearsay and later moved to strike the Commonwealth’s

evidence. Id. Ms. Washington’s testimony was the Commonwealth’s only evidence of damages.

Id. at *9-10. The trial court denied the defendant’s motion to strike and found the defendant

guilty of felony destruction of property in violation of Code § 18.2-137. Id. at *1.

On appeal we noted that, while Ms. Washington was competent to testify as to the value

of the truck, because her vehicle was merely damaged and not totaled, the Commonwealth had

the burden of proving the fair market cost of repair. Id. at *11 (citing Parker v. Commonwealth,

254 Va. 118, 121, 489 S.E.2d 482, 483 (1997)). However, “Ms. Washington did not offer her

own opinion as to the fair market cost of repair. She merely repeated the out-of-court estimate

that an unidentified repair shop reportedly gave to her.” Id. Therefore, the Court went on to

4 “Although not binding precedent, unpublished opinions can be cited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350, 735 S.E.2d 255, 257 (2012) (citing Rule 5A:1(f)). -8- examine “whether the rule allowing lay opinion testimony by a property owner as to the value of

the owner’s property allows an owner to give secondhand testimony of the amount of a specific

repair estimate by an out-of-court declarant over the defendant’s hearsay objection.” Id. at *12.

The issue was at the time the Court decided Brown, and remains, a question of first impression in

Virginia. Id.

The Court held that Ms. Washington’s testimony was inadmissible hearsay and reversed

and remanded the defendant’s conviction due to insufficient evidence of damages. Id. at *17. In

support of its conclusion, Brown discussed the statutory exception to the hearsay rule for

affidavits estimating the cost of repairing the damage to motor vehicles, applicable only in civil

cases. Id. at *12-13 (citing Code § 8.01-416(A)). The Court reasoned that the statutory

exception would not be necessary if the legislature understood the rule allowing an owner’s

testimony as to the value of property to mean that an owner could testify as to the estimated cost

of repairs for property based upon estimates provided by third parties. Id. at *14. Further, the

Court noted that it “would be inconsistent with our traditional maintenance of standards for the

admission of evidence in criminal cases” to admit hearsay testimony in a criminal case which

would be inadmissible in a civil case absent compliance with Code § 8.01-416(A). Id.

We find the Court’s rationale in Brown persuasive. Because Gillespie’s testimony as to

the cost of repairs to the property was based on inadmissible hearsay, we reverse appellant’s

conviction for property damage over $1,000, and remand for a new trial on misdemeanor

property damage, should the Commonwealth be so advised. See Crowder v. Commonwealth, 41

Va. App. 658, 666, 588 S.E.2d 384, 388 (2003) (citing Gorham v. Commonwealth, 15 Va. App.

673, 678, 426 S.E.2d 493, 496 (1993)).

Reversed and remanded.

-9-