Errick Lee Mitchell v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: September 24, 2002
• Docket: 1373013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank Argued at Salem, Virginia

ERRICK LEE MITCHELL MEMORANDUM OPINION * BY v. Record No. 1373-01-3 JUDGE ROSEMARIE ANNUNZIATA SEPTEMBER 24, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Milam, Jr., Judge

Mark T. Williams (Williams, Morrison, Light and Moreau, on brief), for appellant.

Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

On March 19, 2001, the circuit court convicted Errick Lee

Mitchell of unlawful wounding, in violation of Code § 18.2-51,

and sentenced him to five years in the penitentiary, with one

year suspended. On appeal, Mitchell contends: (1) the trial

court erred in allowing a police officer to testify to the

out-of-court identification by the victim, arguing that the

testimony constituted inadmissible hearsay; and (2) the

erroneous ruling was not harmless error. For the following

reasons, we affirm his conviction.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Background

On appeal, we view the evidence in the light most favorable

to the Commonwealth, the party prevailing below, together with

all reasonable inferences that may be drawn from it. Ortega v.

Commonwealth, 31 Va. App. 779, 786, 525 E.E.2d 623, 627 (2000)

(citing Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d

826, 831 (1997) (additional citation omitted)).

On November 18, 2000, Denise Farmer was visiting the home

of Roscoe Harris. During the early hours of November 19th,

Mitchell arrived at the house and asked to speak with Farmer.

Mitchell and Farmer stepped outside, and an argument ensued.

Mitchell then pulled a box cutter out of a case and cut Farmer

across her left arm. She tried to go back inside the house but

Mitchell threatened to cut her again.

Farmer told Mitchell that he had cut her "real bad."

Mitchell wrapped Farmer's wound in a sheet and accompanied her

to the hospital. Upon arrival at the hospital, Mitchell

instructed Farmer to go inside alone. He waited outside.

Police Officer Jacob Sparks questioned Farmer at the hospital

about her wound and the circumstances surrounding its

infliction. Farmer told him that Mitchell had cut her and was

waiting outside. Officer Sparks brought Mitchell into the

hospital and asked Farmer if he was the individual who had cut

her. Farmer responded that he was.

- 2 - At trial, Farmer testified on direct examination that

Mitchell was the individual who had cut her with the box cutter.

Over Mitchell's hearsay objection, Officer Sparks testified

that, when he brought Mitchell into the hospital, he asked

Farmer if Mitchell "had anything to do with her [injury]."

Officer Sparks testified that Farmer responded, "That's the man

who cut me." After he objected to Officer Sparks' testimony,

Mitchell testified about the officer's conversation with Farmer,

and stated Farmer identified him in response to Officer Sparks'

question.

Analysis

Mitchell argues on appeal that we should reverse his

conviction because the trial court admitted inadmissible

testimony from a police officer regarding an out-of-court

identification by the victim. He contends that the testimony is

only admissible as rebuttal evidence when the in-court

identification is equivocal. See Niblett v. Commonwealth, 217

Va. 76, 82-83, 225 S.E.2d 391, 395 (1976). Since the victim

made an unequivocal in-court identification of Mitchell at trial

and no challenge to this identification was raised, Mitchell

argues the police officer's testimony of the out-of-court

identification was inadmissible. Finally, the Commonwealth

asserts than any error in the admissibility of the officer's

testimony was harmless. We find that Mitchell waived his

- 3 - objection to the Commonwealth's hearsay evidence and affirm on

that ground.

When "an accused unsuccessfully objects to evidence which

he considers improper and then on his own behalf introduces

evidence of the same character, he thereby waives his

objection." Saunders v. Commonwealth, 211 Va. 399, 401, 177

S.E.2d 637, 638 (1970); see also Hubbard v. Commonwealth, 243

Va. 1, 9, 413 S.E.2d 875, 879 (1992) (waiving the appellant's

objection to Commonwealth's reconstructed opinion evidence of

vehicle's speed because appellant submitted similar

reconstructed opinion evidence).

Here, Mitchell waived any objection he had to the

Commonwealth's out-of-court identification hearsay evidence

since he introduced the same evidence in his own testimony.

Mitchell testified that the police officer asked the victim, "Do

you recognize . . . do you know him" and that she had stated,

"Yeah that's the guy who cut me." Having testified to the same

hearsay statement that he objected to, Mitchell thus waived his

objection to the evidence. See id.

Affirmed.

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