Bynum v. Commonwealth
57 Va. App. 487
| Va. Ct. App. | 2011Background
- Bynum was convicted of possession with intent to distribute heroin within 1,000 feet of school property under Code § 18.2-255.2.
- Officer Smith testified that 1917 Maple Avenue was within 1,000 feet using an aerial photograph with boundary and radius markings.
- Objections to Smith’s testimony on grounds of hearsay were overruled.
- Officer Johnson testified using the same photograph, verifying the scale by measuring 60 feet on the ground and six-tenths of an inch on the photo.
- Johnson calculated Bynum’s location as approximately 910 feet from the school boundary, relying on the scale rather than the yellow radius lines.
- The trial court denied the motion to strike both officers’ testimony; conviction followed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the aerial photograph testimony was hearsay | Bynum argues the photo is hearsay. | Commonwealth contends the photo is not hearsay. | Not hearsay; admissible |
| If hearsay, whether any error was harmless | Johnson's testimony relied on hearsay; error. | Johnson’s independent measurements cure any error. | Harmless error; Johnson’s testimony sufficient |
| Whether Johnson’s testimony alone suffices to prove 1,000-foot proximity | Johnson’s testimony may be insufficient if evidence is flawed. | Johnson’s scale-based measurement is adequate. | Johnson’s testimony sufficient to establish proximity |
Key Cases Cited
- Tatum v. Commonwealth, 279 Va. 490 (2010) (photograph-like evidence not hearsay when no out-of-court declarant)
- Penny v. Commonwealth, 6 Va.App. 494 (1988) (call trap reliability independent of declarant)
- Ferguson v. Commonwealth, 212 Va. 745 (1972) (photograph authentication sufficiency test)
- Lawrence v. Commonwealth, 279 Va. 490 (2010) (relevance of information not from out-of-court declarant in certain contexts)
- Robinson v. Commonwealth, 258 Va. 3 (1999) (price-tag-like or similar declarancies as non-hearsay when not out-of-court declarations)
- Stevens v. Mirakian, 177 Va. 123 (1941) (hearsay foundational concerns for photographs)
- Sisson & Ryan, Inc. v. Chesapeake & Potomac Tel. Co., 234 Va. 492 (1987) (cross-examination like concerns with declarants)
- Gonzales v. Commonwealth, 45 Va.App. 375 (2005) (broad discretion standard for evidentiary rulings)
- Bass v. Commonwealth, 31 Va.App. 373 (2000) (abuse of discretion standard; harmless error analysis)
- Schindel v. Commonwealth, 219 Va. 814 (1979) (harmless error where other competent evidence establishes the fact)