COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton Argued at Richmond, Virginia
WALTER E. PATTERSON, JR. MEMORANDUM OPINION * BY v. Record No. 2676-96-2 CHIEF JUDGE JOHANNA L. FITZPATRICK MARCH 3, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge Andrea C. Long (David E. Boone; Boone, Beale, Cosby & Long, on brief), for appellant.
Ruth Ann Morken, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Walter E. Patterson, Jr. (appellant) was convicted in a jury
trial of breaking and entering, grand larceny, and assault and
battery. On appeal, he contends the trial court erroneously:
(1) admitted a criminal complaint of unverified authorship, and
(2) allowed the Commonwealth to refer to it on rebuttal. For the
following reasons, we affirm the convictions.
I.
At approximately 1:10 p.m. on February 7, 1996, Charles and
Michelle Spencer returned to their home at 11630 Old Centralia
Road for lunch. They stopped in the garage to feed the dog
before climbing the exterior stairwell to their front door.
While they were in the garage, the couple heard footsteps on the
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. floor above them. Charles immediately ran upstairs while
Michelle called 911 from a telephone in the garage.
As Charles reached the top of the stairwell, he met a man
running out of the Spencer home with a bag. The man lowered his
head to push Charles out of the way. Charles grabbed the man,
and they fell together down the steps to a landing where Charles
wrestled the bag away from the intruder. The man jumped over the
railing, looked up at Charles for a moment and then ran back up
to the landing and continued to wrestle over the bag. He told
Charles he had a gun, and Charles let go of the bag. The man ran
off toward the woods in the direction of Chester Middle School.
The Spencers recovered their stolen property, valued at
approximately $4,650, from the ground beneath the landing, where
it had fallen during the scuffle over the bag. Chesterfield Police Officer R.L. Hutchison, Jr. was one
block away from the Chester Middle School when he received the
radio dispatch regarding the break-in at the Spencer home.
Hutchison proceeded to the school, where he spotted a man
matching Michelle Spencer's description. After a foot chase,
Hutchison apprehended appellant.
At trial, Hutchison identified appellant as the man he
chased and apprehended and the bag as the one he recovered.
Michelle Spencer testified that the bag Hutchison recovered was
the bag over which the intruder and her husband had fought.
Charles Spencer identified appellant as the man with whom he
2 struggled and the bag as the one the intruder carried from his
house.
The Commonwealth offered into evidence a criminal complaint
signed by appellant alleging that at approximately 1:15 p.m. on
February 7, 1996, Charles Spencer committed an assault and
battery on him at 11630 Old Centralia Road. The document was
obtained from the district court clerk's office and certified as
an accurate copy of the complaint on file in that court. Over
defense objection, the trial court admitted the complaint. Appellant presented no evidence, and in closing argument,
his counsel suggested mistaken identity. "There's only one
person that claims that he saw him, and that's the upset
homeowner." The Commonwealth, on rebuttal, referred to the
criminal complaint as evidence that placed appellant at the
Spencer home around the time of the break-in and subsequent
scuffle. The jury found appellant guilty on all three counts.
II.
Appellant first contends the criminal complaint was
inadmissible because the Commonwealth failed to offer evidence
that appellant authored the complaint. "'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.'" Brown v. Commonwealth, 25 Va. App. 171, 181,
487 S.E.2d 248, 253 (1997) (quoting Blain v. Commonwealth, 7 Va.
App. 10, 16, 371 S.E.2d 838, 842 (1988)). "The records of any
3 judicial proceeding and any other official records 1 of any court
of this Commonwealth shall be received as prima facie evidence
provided that such records are authenticated and certified by the
clerk of the court where preserved to be a true record." Code
§ 8.01-389. "[T]he terms 'authenticated' and 'certified' are
basically synonymous" in this context. Owens v. Commonwealth, 10
Va. App. 309, 311, 391 S.E.2d 605, 607 (1990). In the instant
case, the complaint was certified by the proper clerk, and it was
therefore admissible as prima facie evidence. Appellant next suggests that the Commonwealth had an
additional burden of establishing that he authored the complaint.
His argument lacks merit. The presumption of regularity of
court documents attached to the criminal complaint and
established the requisite prima facie case. "'[E]very act of a
court of competent jurisdiction shall be presumed to have been
rightly done, till the contrary appears.'" Nicely v.
Commonwealth, 25 Va. App. 579, 584, 490 S.E.2d 281, 283 (1997)
(citation omitted). "In the absence of clear evidence to the
contrary, courts may presume that public officers have properly
discharged their official duties." Robertson v. Commonwealth, 12
Va. App. 854, 856-57, 406 S.E.2d 417, 418 (1991). Appellant
failed to argue that the signature on the complaint was not his,
and he offered no evidence that it was not genuine. In the 1 "Records" includes "any memorandum, report, paper, data compilation, or other record in any form, or any combination thereof." Code § 8.01-389(D).
4 absence of such evidence, the complaint is presumed to be
accurate and we cannot hold the trial court abused its discretion
in admitting it. 2
Additionally, appellant contends the trial court erred in
allowing the Commonwealth to refer to the assault complaint on
rebuttal. "A trial court has broad discretion in the supervision
of . . . closing argument." O'Dell v. Commonwealth, 234 Va. 672,
703, 364 S.E.2d 491, 509 (1987), cert. denied, 488 U.S. 871
(1988). "'This Court will not interfere with the exercise of
this broad discretion unless it affirmatively appears that such
discretion has been abused and that the rights of the complaining
litigant have been prejudiced.'" Canipe v. Commonwealth, 25 Va.
App. 629, 639, 491 S.E.2d 747, 752 (1997) (citation omitted).
"'In rebuttal argument, a prosecutor has the right to answer the
argument made by defense counsel and to refer to evidence and
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton Argued at Richmond, Virginia
WALTER E. PATTERSON, JR. MEMORANDUM OPINION * BY v. Record No. 2676-96-2 CHIEF JUDGE JOHANNA L. FITZPATRICK MARCH 3, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge Andrea C. Long (David E. Boone; Boone, Beale, Cosby & Long, on brief), for appellant.
Ruth Ann Morken, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Walter E. Patterson, Jr. (appellant) was convicted in a jury
trial of breaking and entering, grand larceny, and assault and
battery. On appeal, he contends the trial court erroneously:
(1) admitted a criminal complaint of unverified authorship, and
(2) allowed the Commonwealth to refer to it on rebuttal. For the
following reasons, we affirm the convictions.
I.
At approximately 1:10 p.m. on February 7, 1996, Charles and
Michelle Spencer returned to their home at 11630 Old Centralia
Road for lunch. They stopped in the garage to feed the dog
before climbing the exterior stairwell to their front door.
While they were in the garage, the couple heard footsteps on the
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. floor above them. Charles immediately ran upstairs while
Michelle called 911 from a telephone in the garage.
As Charles reached the top of the stairwell, he met a man
running out of the Spencer home with a bag. The man lowered his
head to push Charles out of the way. Charles grabbed the man,
and they fell together down the steps to a landing where Charles
wrestled the bag away from the intruder. The man jumped over the
railing, looked up at Charles for a moment and then ran back up
to the landing and continued to wrestle over the bag. He told
Charles he had a gun, and Charles let go of the bag. The man ran
off toward the woods in the direction of Chester Middle School.
The Spencers recovered their stolen property, valued at
approximately $4,650, from the ground beneath the landing, where
it had fallen during the scuffle over the bag. Chesterfield Police Officer R.L. Hutchison, Jr. was one
block away from the Chester Middle School when he received the
radio dispatch regarding the break-in at the Spencer home.
Hutchison proceeded to the school, where he spotted a man
matching Michelle Spencer's description. After a foot chase,
Hutchison apprehended appellant.
At trial, Hutchison identified appellant as the man he
chased and apprehended and the bag as the one he recovered.
Michelle Spencer testified that the bag Hutchison recovered was
the bag over which the intruder and her husband had fought.
Charles Spencer identified appellant as the man with whom he
2 struggled and the bag as the one the intruder carried from his
house.
The Commonwealth offered into evidence a criminal complaint
signed by appellant alleging that at approximately 1:15 p.m. on
February 7, 1996, Charles Spencer committed an assault and
battery on him at 11630 Old Centralia Road. The document was
obtained from the district court clerk's office and certified as
an accurate copy of the complaint on file in that court. Over
defense objection, the trial court admitted the complaint. Appellant presented no evidence, and in closing argument,
his counsel suggested mistaken identity. "There's only one
person that claims that he saw him, and that's the upset
homeowner." The Commonwealth, on rebuttal, referred to the
criminal complaint as evidence that placed appellant at the
Spencer home around the time of the break-in and subsequent
scuffle. The jury found appellant guilty on all three counts.
II.
Appellant first contends the criminal complaint was
inadmissible because the Commonwealth failed to offer evidence
that appellant authored the complaint. "'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.'" Brown v. Commonwealth, 25 Va. App. 171, 181,
487 S.E.2d 248, 253 (1997) (quoting Blain v. Commonwealth, 7 Va.
App. 10, 16, 371 S.E.2d 838, 842 (1988)). "The records of any
3 judicial proceeding and any other official records 1 of any court
of this Commonwealth shall be received as prima facie evidence
provided that such records are authenticated and certified by the
clerk of the court where preserved to be a true record." Code
§ 8.01-389. "[T]he terms 'authenticated' and 'certified' are
basically synonymous" in this context. Owens v. Commonwealth, 10
Va. App. 309, 311, 391 S.E.2d 605, 607 (1990). In the instant
case, the complaint was certified by the proper clerk, and it was
therefore admissible as prima facie evidence. Appellant next suggests that the Commonwealth had an
additional burden of establishing that he authored the complaint.
His argument lacks merit. The presumption of regularity of
court documents attached to the criminal complaint and
established the requisite prima facie case. "'[E]very act of a
court of competent jurisdiction shall be presumed to have been
rightly done, till the contrary appears.'" Nicely v.
Commonwealth, 25 Va. App. 579, 584, 490 S.E.2d 281, 283 (1997)
(citation omitted). "In the absence of clear evidence to the
contrary, courts may presume that public officers have properly
discharged their official duties." Robertson v. Commonwealth, 12
Va. App. 854, 856-57, 406 S.E.2d 417, 418 (1991). Appellant
failed to argue that the signature on the complaint was not his,
and he offered no evidence that it was not genuine. In the 1 "Records" includes "any memorandum, report, paper, data compilation, or other record in any form, or any combination thereof." Code § 8.01-389(D).
4 absence of such evidence, the complaint is presumed to be
accurate and we cannot hold the trial court abused its discretion
in admitting it. 2
Additionally, appellant contends the trial court erred in
allowing the Commonwealth to refer to the assault complaint on
rebuttal. "A trial court has broad discretion in the supervision
of . . . closing argument." O'Dell v. Commonwealth, 234 Va. 672,
703, 364 S.E.2d 491, 509 (1987), cert. denied, 488 U.S. 871
(1988). "'This Court will not interfere with the exercise of
this broad discretion unless it affirmatively appears that such
discretion has been abused and that the rights of the complaining
litigant have been prejudiced.'" Canipe v. Commonwealth, 25 Va.
App. 629, 639, 491 S.E.2d 747, 752 (1997) (citation omitted).
"'In rebuttal argument, a prosecutor has the right to answer the
argument made by defense counsel and to refer to evidence and
fair inferences suggested by the evidence touching the subjects
covered by the adversary.'" Clark v. Commonwealth, 3 Va. App.
474, 483, 351 S.E.2d 42, 46 (1986) (citation and emphasis
omitted) (prosecutor allowed to use statements of an individual
not mentioned in defense counsel's closing for the purpose of
rehabilitating witnesses attacked in closing). 2 To the extent that appellant suggests the clerk should have certified both the authenticity of the record and that she had independent knowledge of the facts therein, this dual authentication argument was rejected in Owens, 10 Va. App. at 311, 391 S.E.2d at 607 ("Authentication is merely the process of showing that a document is genuine and that it is what its proponent claims it to be.").
5 In the instant case, the closing defense argument attacked
Charles Spencer's identification of appellant as the person with
whom he struggled and who attempted to steal his property. This
clearly raised a claim of mistaken identity. On rebuttal, the
Commonwealth was allowed to rehabilitate its eyewitness and
answer the mistaken identity defense. It did so by reference to
the criminal complaint, which tended to show appellant's presence
at the Spencer home at the time of the break-in. Use of the
complaint was not beyond the scope of rebuttal, and the trial
court did not abuse its discretion. For the foregoing reasons,
we affirm.
Affirmed.