Kevin Anthony Battaglia v. Commonwealth of Virginia
0719154
| Va. Ct. App. | Mar 7, 2017Background
- On Nov. 17, 2013, Kevin Battaglia, intoxicated, was ejected from Brittany’s Restaurant after a patron complaint; he drew a gun outside and later discarded it while fleeing toward a nearby gym.
- Restaurant security guard Craig Kirkland gave a witness statement to police and at trial testified about events but omitted certain details at preliminary hearing; on re-direct the Commonwealth had Kirkland read his entire written statement in court.
- Officer Bryan Gee located Battaglia in a parking lot, ordered him to turn and put hands up via PA, chased him when he ran, observed signs of intoxication, and ultimately handcuffed him after Battaglia fell; Battaglia thereafter flailed, kicked officers, and was combative in the cruiser.
- Charges: two counts of assault on a law-enforcement officer, pointing/brandishing a firearm, carrying a concealed weapon while intoxicated, and resisting arrest; convicted on all except one assault count and one weapons-related charge dismissed at trial.
- Trial rulings challenged on appeal: (1) permitting Kirkland to read his entire witness statement, (2) denial of a mistrial after a brief, unsolicited remark by Battaglia’s ex-wife about meeting at a police station, and (3) sufficiency of the evidence to convict for resisting arrest.
Issues
| Issue | Plaintiff's Argument (Battaglia) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Admissibility of witness statement read in court | Trial court misapplied Va. R. Evid. 2:106; statement contained hearsay and exceeded cross-examination scope | Statement was properly admitted under Rule 2:106 because counsel opened the door by impeaching witness with statement; jury could weigh inconsistencies | Affirmed — court had discretion under Rule 2:106 to admit the full statement; hearsay objection was untimely |
| Motion for mistrial after ex-wife’s remark about a police station | Remark was highly prejudicial and implied prior bad acts warranting mistrial | Remark was responsive to counsel’s question, stopped on objection, and the court gave a prompt curative instruction which juries are presumed to follow | Affirmed — no manifest probability of prejudice; curative instruction sufficient |
| Sufficiency of evidence for resisting arrest (Code § 18.2-479.1) | Officer lacked immediate physical ability to arrest when Battaglia briefly fled; once handcuffed he did not flee, so charge unsupported | Officer communicated arrest, had authority and ability to effect arrest, Battaglia knowingly fled and disobeyed | Affirmed — viewed in Commonwealth’s favor, evidence supported resisting arrest conviction |
| Hearsay in Kirkland’s statement | (subsidiary) statement contained another patron’s hearsay which prejudiced Battaglia | Objection on hearsay grounds was not timely made at the time the evidence was offered | Affirmed — hearsay objection waived for untimeliness |
Key Cases Cited
- Midkiff v. Commonwealth, 280 Va. 216 (2010) (standard: trial court’s evidentiary rulings reviewed for abuse of discretion)
- Jones v. Commonwealth, 50 Va. App. 437 (2007) (admission of full statement permitted where opposing party opened the door by using parts to impeach)
- Cavell v. Commonwealth, 28 Va. App. 484 (1998) (en banc) (resisting-arrest conviction supported where defendant knowingly fled after officer’s show of authority)