Virginia Grand Larceny 18.2-95 Sixth Amendment

Virginia Grand Larceny 18.2-95 Sixth Amendment

Wilder v. Commonwealth, 55 Va. App. 579, 593-594 (Va. Ct. App. 2010)

First Issue: Whether the 911 Tape recording was inadmissible hearsay?

As a general rule, hearsay evidence is incompetent and inadmissible,' and 'the party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility. However, Virginia recognizes several exceptions to this general rule. One such exception involves "present sense impression[s]," which are "statement[s] accompanying and characterizing an act. In order for the present sense impression exception to apply, three requirements must be satisfied: "(1) the declaration must have been contemporaneous with the act; (2) it must explain the act; and (3) it must be spontaneous.

The Court held that the statements contained in the 911 tape recording satisfy all three requirements of the present sense impression exception to the hearsay rule. Since in the tape recording, Madison stated that "they are pushing a . . . They struggling [sic] with it. Madison also stated that "they are en route to Lambert's Point down 25th Street." In addition, Madison described what Wilder and Brooks were wearing at the time. Because they were made in the present tense, it is clear that these statements accompanied the acts they described, satisfying the contemporaneous requirement of the present sense impression exception.

Second Issue: Whether the admission violated his Sixth Amendment right to confrontation?

The Court held that the admission violated Wilder's rights under the Sixth Amendment

Because the record in this case lacks any evidence to suggest that Wilder posed such a danger to Madison or anyone else.Nor does the recording indicate that Madison was frantic or in an unsafe environment. Madison was not facing an "ongoing emergency," but was instead merely providing a narrative report of a larceny in progress; we hold that the tape recording of his 911 call was "testimonial" within the meaning of the Confrontation Clause.Thus, its admission violated Wilder's rights under the Sixth Amendment.

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