Hicks v. Commonwealth
60 Va. App. 237
Va. Ct. App.2012Background
- Hicks was convicted in the circuit court of attempted murder, aggravated malicious wounding, robbery, and use of a firearm in the commission of a felony.
- Clyde Dellinger was shot in the face and robbed in his yard on June 10, 2010; Hicks was identified at a preliminary hearing as the shooter.
- Evidence included Clyde’s spontaneous statements at the scene and Clyde’s later preliminary hearing testimony identifying Hicks.
- Clyde died before trial, and the court allowed into evidence Clyde’s excited utterance statements and the deceased victim’s preliminary hearing testimony.
- Paula and Sheriff Smith testified at trial about Clyde’s preliminary hearing testimony; Hicks contends this violated hearsay and confrontation rights, respectively.
- The court affirmed, holding the excited utterance and preliminary hearing testimony admissible, and that Hicks’s confrontation rights were satisfied by his cross-examination at the preliminary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Clyde’s excited utterance | Hicks argues statements were not excited utterances. | Hicks asserts statements were narrative, not spontaneous. | Affirmed; statements were properly admitted as excited utterances. |
| Admission of Clyde’s preliminary hearing testimony of an unavailable witness | Paula and Sheriff Smith’s recollections were insufficient to satisfy Longshore’s clarity/detail requirement. | Trial court properly admitted testimony under Longshore’s criteria and Crawford/Bullcoming rights. | Affirmed; the testimony met Longshore requirements and Crawford dictates were satisfied. |
Key Cases Cited
- Clark v. Commonwealth, 235 Va. 287 (1988) (excited utterance factors, spontaneity and immediacy considered)
- Caison v. Commonwealth, 52 Va.App. 423 (2008) (excited utterance admissibility considerations)
- Longshore v. Commonwealth, 260 Va. 3 (2000) (testimony of unavailable witness admissible under conditions of unavailability and cross-examination opportunity)
- Doe v. Thomas, 227 Va. 466 (1984) (time lapse not controlling but relevant to spontaneity)
- Braxton v. Commonwealth, 26 Va.App. 176 (1997) (circumstances under which spontaneous statements may be admitted)
- Perry v. Commonwealth, 58 Va.App. 655 (2011) (context of excited utterance analysis in trials)
- Hudson v. Commonwealth, 265 Va. 505 (2003) (standard of review for evidentiary rulings)
- Clark v. Commonwealth, 235 Va. 287 (1988) (illustrative excited utterance analysis)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) (Confrontation Clause—unavailability and cross-examination requirement)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause framework for testimonial statements)