Michael Ervin Travers v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: March 5, 1996
• Docket: 1970944
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Fitzpatrick, and Senior Judge Duff Argued at Alexandria, Virginia

MICHAEL ERVIN TRAVERS

v. Record No. 1970-94-4 MEMORANDUM OPINION * BY JUDGE CHARLES H. DUFF COMMONWEALTH OF VIRGINIA MARCH 5, 1996

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Rosemarie Annunziata, Judge Andrew P. Wright (Briglia & Wright, on brief), for appellant.

Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Michael Travers (appellant) appeals his conviction for

murder in the first degree. He argues that the trial court erred

in excluding his statements to the police and the records of

certain criminal convictions of the decedent, Gerald Moore. We

find no reversible error in the trial court's rulings and affirm

appellant's conviction.

I.

"On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

Upon returning home on the night of February 5, 1994,

* Pursuant to Code § 17-116.010, this opinion is not designated for publication. appellant's wife found the dead body of Gerald Moore on the sofa

in the apartment she shared with appellant and their two

children. Moore had sustained fourteen stab wounds, three of

them fatal. Two of the wounds punctured his heart. Moore's

blood alcohol content was .40 percent. A toxicologist testified

that such an amount of alcohol in Moore's bloodstream would have

induced a state approaching "general paralysis."

At about 10:00 p.m. that night, appellant called his father

and said he had stabbed a man. Appellant appeared at his

father's house shortly thereafter. When police officers arrested

appellant there later, they found blood on his clothes, on his

hands, and on a knife sheath on his belt. Appellant testified that he and Moore met for the first time

at a convenience store in the early evening of February 5, 1994.

Appellant and Moore went to appellant's apartment for the

purpose of drinking alcohol. Appellant testified that at the

apartment he and Moore had argued, and that Moore attacked him.

Appellant said he remembered stabbing Moore with a knife once in

self-defense.

II.

Before appellant testified in his behalf and had his

credibility challenged on cross-examination, he asked the trial

court to permit him to introduce statements he made to the police

following his arrest. The statements contained admissions that

appellant had stabbed Moore, but that he had acted in self-

-2- defense. The court ruled the statements hearsay and excluded

them.

"'Hearsay evidence is defined as a spoken or written

out-of-court declaration or nonverbal assertion offered in court

to prove the truth of the matter asserted therein." Hamm v.

Commonwealth, 16 Va. App. 150, 155, 428, S.E.2d 517, 521 (1993).

Appellant sought to introduce his statements to prove that he

acted in self-defense. Thus, appellant offered the statements

for the truth of the matters asserted therein, and the statements

were hearsay. "As a general rule, hearsay evidence is incompetent and

inadmissible. . . . The party seeking to rely upon an exception

to the hearsay rule has the burden of establishing

admissibility." Neal v. Commonwealth, 15 Va. App. 416, 420-21,

425 S.E.2d 521, 524 (1992). On appeal, appellant does not assert

that any exception to the hearsay rule permitted the introduction

of his statements during his case in chief. Moreover, "when

proffered by the party who made the statement, such a statement

is generally not admissible." King v. Commonwealth, 18 Va. App.

57, 59, 441 S.E.2d 704, 705 (1994). In the absence of an

applicable exception to the hearsay rule, the trial judge did not

err in refusing to permit appellant to introduce the statements. 1 1 We find no merit to appellant's argument that he should have been permitted to introduce the statements at trial because the Commonwealth did so at the preliminary hearing. The Commonwealth is not required to introduce the same evidence at trial as at the preliminary hearing, nor is the Commonwealth barred at trial from objecting to such evidence.

-3- After the parties had rested and while the trial court was

discussing jury instructions with counsel, appellant's attorney

requested leave to reopen his case to permit appellant to testify

about his statements to the police. Although counsel previously

had declined the opportunity to present rebuttal evidence, she

contended that the evidence was necessary to support her planned

closing argument that appellant asserted self-defense "early on."

The trial court refused appellant's request. "A defendant may introduce his or her own prior consistent

statements when the prosecution suggests that the defendant has a

motive to falsify, alleges that the defendant's testimony is a

recent fabrication, or attempts to impeach the defendant with a

prior inconsistent statement." Id. at 59, 441 S.E.2d at 705. To

be admissible, however, the prior statements must have been "made

at a time when their ultimate effect and operation could not have

been foreseen." Skipper v. Commonwealth, 195 Va. 870, 876, 80

S.E.2d 401, 405 (1954). See also Faison v. Hudson, 243 Va. 397,

404, 417 S.E.2d 305, 309 (1992).

The decision whether to permit the introduction of further

testimony after both parties have rested their cases is addressed

to the sound discretion of the trial court and will not be

reversed on appeal absent an abuse of that discretion. Williams

v. Commonwealth, 4 Va. App. 53, 77, 354 S.E.2d 79, 92 (1987). We

cannot say the trial court abused its discretion in denying

appellant's motion to reopen his case.

-4- III.

The trial judge refused to admit records of Moore's Maryland

and Florida convictions because the proffered documents did not

comply with Code § 8.01-389. Code § 8.01-389(A)(1) provides:

The records of any judicial proceeding and any other official

record of any court of another state or country, or of the United

States, shall be received as prima facie evidence provided that

such records are authenticated by the clerk of the court where

preserved to be a true record, and similarly certified by a judge

of that court.

For purposes of Code § 8.01-389, "the terms 'authenticated' and

'certified' are basically synonymous . . . . Authentication is

merely the process of showing that a document is genuine and that

it is what its proponent claims it to be." Owens v.

Commonwealth, 10 Va. App. 309, 311, 391 S.E.2d 605, 607 (1990).

The Maryland and Florida conviction orders were not

certified by a judge. Thus, the orders did not comply with the

requirements of Code § 8.01-389, and the trial judge did not err

in excluding them.

The trial court also excluded the Virginia record of Moore's

conviction of disorderly conduct arising from an incident on

November 16, 1993. The court admitted, however, the testimony of

Officer Connor about Moore's conduct that resulted in the

disorderly conduct charge.

Even if the Virginia disorderly conduct conviction should

-5- have been admitted, the error was harmless in light of Officer

Connor's testimony about the event. Connor testified that on

November 16, 1993, he observed Moore swing a piece of wood like a

baseball bat in the direction of several individuals fleeing from

a convenience store parking lot. Moore was intoxicated and

angry. Connor's testimony illustrated Moore's propensity for

violent or turbulent behavior more graphically than the bare

conviction order possibly could. In addition, the trial court

did admit orders reflecting Moore's thirteen convictions for

public drunkenness. Because it appears from the record that any

conceivable error did not affect the verdict, see Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc), we affirm appellant's conviction.

Affirmed.

-6-