Perry v. Commonwealth
58 Va. App. 655
Va. Ct. App.2011Background
- George Thomas Perry was convicted of two counts of attempted robbery and two counts of use of a firearm in the commission of an attempted robbery after a trial by jury.
- The incidents occurred September 1, 2009, at Bowling Park Elementary School, involving sixteen-year-olds Wilson and Murray being confronted by Perry and others with a handgun.
- Wilson testified that Perry threatened violence, struck Wilson with a gun, and fled with Quan and an unidentified boy, after which Wilson and Murray reported the incident to Wilson's father and then to police.
- Adams, Wilson’s father, testified about the events after meeting with the youths and locating Perry; Adams also described the subsequent pursuit and identification of Perry by Wilson and Murray.
- During trial, the Commonwealth sought to introduce Murray’s out-of-court statements via Adams under the excited utterance exception; defense objected on hearsay grounds but not on all grounds.
- Perry timely challenged Adams’ testimony on hearsay grounds; later, Perry moved for mistrial arguing juror inattentiveness and claimed violation of confrontation rights, which the trial court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Murray’s statements as excited utterance | Adams conveyed Murray’s statements as excited utterances. | Statements were not spontaneous; timing and circumstances negate excited utterance. | Court did not abuse discretion; statements admissible as excited utterance; harmless error. |
| Confrontation Clause challenge to Murray’s statements | Adams’ testimony violated Perry’s right to confront the accuser. | Right not timely preserved; failure to object precludes review; even if considered, no violation. | Waiver under Rule 5A:18; no reversible error; error, if any, harmless. |
| Mistrial denial for juror inattentiveness | Juror fell asleep during Wilson’s testimony; mistrial needed. | Did not timely object; Mayo/Green guidance show waiver; no basis for mistrial. | No reversible error; failure to timely object bars appellate review; no miscarriage of justice established. |
Key Cases Cited
- Adams v. Commonwealth, 275 Va. 260 (2008) (extremely cited for cumulative error and harmless error standard)
- Braxton v. Commonwealth, 26 Va.App. 176 (1997) (excited utterance reliability and temporal considerations)
- Clark v. Commonwealth, 235 Va. 287 (1988) (excited utterance prerequisites; spontaneity and immediacy)
- Goins v. Commonwealth, 251 Va. 442 (1996) (startling event prerequisite and declarant’s knowledge)
- Upton v. Commonwealth, 172 Va. 654 (1939) (distance/location not conclusive; factors for excited utterance)
- Mayo v. Commonwealth, 10 Va.App. 335 (1990) (contemporaneous objection requirement for mistrial requests)
- Yeatts v. Commonwealth, 242 Va. 121 (1991) (timeliness of objection to preserve mistrial review)
- Green v. Commonwealth, 26 Va.App. 394 (1998) (waiver when defendant fails to pursue pretrial objections)
- Cheng v. Commonwealth, 240 Va. 26 (1990) (contemporaneous objection rule application)
- Price v. Commonwealth, 213 Va. 113 (1972) (contemporaneous objection requirements)