Curtis Wayne King v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, McClanahan and Senior Judge Coleman
Argued by teleconference
CURTIS WAYNE KING
MEMORANDUM OPINION* BY
v. 	Record No. 2788-04-3 	JUDGE LARRY G. ELDER
APRIL 25, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Jon I. Davey (The Law Office of Jon I. Davey, on brief), for
appellant.
Leah A. Darron, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
Curtis Wayne King (appellant) appeals from his bench trial convictions for aggravated
malicious wounding, use of a firearm in the commission of that offense, and possession of a
firearm by a convicted felon. On appeal, he contends the trial court abused its discretion by
allowing a detective to testify about the victim’s response when showed a photo array that
included appellant’s photo. He argues the testimony was improperly admitted under both state
hearsay rules and the Confrontation Clause of the United States Constitution. He admits he
objected at trial only on state hearsay grounds but argues the ends of justice exception to Rule
5A:18 requires us to consider the Confrontation Clause issue on appeal, as well. We hold the
trial court did not err in admitting the challenged testimony over appellant’s state hearsay
objection. We hold further that the ends of justice exception does not apply to appellant’s
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

- 2 -
Confrontation Clause claim, and thus, we do not consider that issue on the merits. Accordingly,
we affirm appellant’s convictions.
I.
A. STATE HEARSAY RULES
Under settled principles, Virginia law permits the admission of evidence of an
extra-judicial identification that is relevant to the issue of the credibility of a witness’ in-court
identification. Martin v. Commonwealth, 210 Va. 686, 692, 173 S.E.2d 794, 799 (1970) (“The
applicable rule, which the defendant recognizes, is that evidence of a pre-trial identification is
admissible and may be sufficient to overcome deficiencies existing in an in-court
identification.”); Johnson v. Commonwealth, 2 Va. App. 447, 449-50, 345 S.E.2d 303, 304-05
(1986) (approving admission of evidence of witness’ pretrial identification “to enhance [that
same witness’ in-court] identification”); see Niblett v. Commonwealth, 217 Va. 76, 82-83, 225
S.E.2d 391, 395 (1976) (admitting evidence of one witness’ pretrial i.d. of defendant, even
though that witness was unable to make “even a weak in-court [i.d.],” “for the purpose of
overcoming . . . deficiencies” in second witness’ in-court i.d., which had been challenged on
cross-examination); see also id. at 81-82, 225 S.E.2d at 394 (noting (a) trend in other states to
admit extra-judicial identifications made by witnesses available for cross-examination at trial as
independent evidence of identity and (b) “agree[ment] with the reasoning of those courts”).
Such an identification is hearsay, whether made by verbal or nonverbal conduct, if
offered to prove the truth of the matter asserted.1 See, e.g., Stevenson v. Commonwealth, 218
Va. 462, 465, 237 S.E.2d 779, 781 (1977). The Supreme Court has recognized, however, that
1 Nonverbal conduct is hearsay if it is assertive conduct--conduct, such as nodding one’s
head, intended by the actor as an assertion. See Manetta v. Commonwealth, 231 Va. 123,
126-27, 340 S.E.2d 828, 829-30 (1986); see also Charles E. Friend, The Law of Evidence in
Virginia § 18-8 (6th ed. 2003). Nonassertive conduct, by contrast, is not hearsay. Thus, the

- 3 -
Where the witness who identified the accused out-of-court is
available as a witness, so as to afford the accused the rights of
confrontation and cross-examination, the dangers sought to be
avoided by the hearsay rule are absent and the testimony of a third
person as to the extrajudicial identification has been held to be
admissible.
Niblett, 217 Va. at 81, 225 S.E.2d at 394; see also Charles E. Friend, The Law of Evidence in
Virginia § 18-33[b] (6th ed. 2003) (interpreting Niblett as “approv[ing] the rule of broad
admissibility of hearsay evidence of pre-trial identifications as independent substantive evidence
of identity . . . regardless of any intervening attempt, or lack of attempt, at impeachment” as long
as the witness is “present in court and available for cross-examination”).
Here, the victim, Dana Gardner, took the stand and testified without objection that he
identified his shooter when shown a photo array while in the hospital. Gardner was available for
cross-examination on that subject, although appellant’s counsel chose to limit his
cross-examination to Gardner’s in-court identification of appellant as the shooter and Gardner’s
ability to distinguish appellant from his cousin and others. Thus, the testimony of Detective
Michael Wallace regarding Gardner’s pretrial identification of appellant as the person who shot
him was admissible in response to appellant’s attack on the reliability of Gardner’s in-court
identification of appellant as the shooter. See Niblett, 217 Va. at 82-83, 225 S.E.2d at 395;
Johnson, 2 Va. App. at 449-50, 345 S.E.2d at 304-05.
B. CONFRONTATION CLAUSE AND PRESERVATION OF ISSUE FOR APPEAL
Appellant also contends that the trial court’s admission of Detective Wallace’s testimony
about Gardner’s pretrial identification violated the United States Constitution’s Confrontation
Clause. He concedes he failed to make this objection at trial but contends we should
nevertheless consider this issue on appeal.
victim’s demeanor during his encounter with Detective Wallace, including the fact that he cried
when shown the photo array containing appellant’s picture, was not hearsay.

- 4 -
Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis
for reversal unless the objection was stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of
justice.” “Rule 5A:18 applies to bar even constitutional claims.” Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). The “‘good cause’ [exception] relates to the
reason why an objection was not stated at the time of the ruling,” Campbell v. Commonwealth,
14 Va. App. 988, 996, 421 S.E.2d 652, 656 (1992) (en banc) (Barrow, J., concurring), and, thus,
it is not applicable under the facts of this case. The ends of justice exception, which “addresses
the effect of the error,” id. at 996, 421 S.E.2d at 657 (Barrow, J., concurring), requires proof of
an error that was “clear, substantial and material.” Brown v. Commonwealth, 8 Va. App. 126,
132, 380 S.E.2d 8, 11 (1989).
Under settled principles, “‘the Confrontation Clause is . . . satisfied when the hearsay
declarant testifies at trial and is available for cross-examination.’” United States v. Wipf, 397
F.3d 677, 682 (8th Cir. 2005) (quoting Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir.
2003)) (noting that decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004), does not support a different result). Here, Gardner testified at trial and was
available for cross-examination, although appellant’s counsel chose not to question him about his
pretrial identification of appellant. Because the record fails to establish an error that was “clear,
substantial and material,” Brown, 8 Va. App. at 132, 380 S.E.2d at 11, we may not consider the
merits of appellant’s Confrontation Clause claim, which he failed to raise at trial, under the ends
of justice exception.
II.
For these reasons, we hold the trial court did not err in admitting the challenged
testimony over appellant’s state hearsay objection. We hold further that the ends of justice

- 5 -
exception does not apply to appellant’s Confrontation Clause claim, and thus, we do not consider
that issue on the merits. Accordingly, we affirm appellant’s convictions.
Affirmed.