                               COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Kelsey and Senior Judge Overton
Argued at Salem, Virginia


RICKY L. PRUITT, SR., A/K/A
 JAMES RICKY PRUITT, SR.
                                                             MEMORANDUM OPINION* BY
v.     Record No. 0651-03-3                                JUDGE ROSEMARIE ANNUNZIATA
                                                                SEPTEMBER 28, 2004
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                                Charles J. Strauss, Judge

                 Charles C. Cosby, Jr. (Boone, Beale, Cosby & Long, on brief), for
                 appellant.

                 John H. McLees, Senior Assistant Attorney General (Jerry W.
                 Kilgore, Attorney General, on brief), for appellee.


       James Ricky Pruitt, Sr. was convicted of two counts of causing his sixteen-year-old son

to assist him in distributing marijuana in violation of Code § 18.2-255. He appeals his

convictions, arguing they should be reversed because the trial court improperly excluded

testimony regarding admissions made by his son on the ground that it constituted hearsay.

Finding no error, we affirm.

                                           I. Background

       Under familiar principles, we review the evidence and all reasonable inferences that may

be drawn from the evidence in a light most favorable to the Commonwealth as the party

prevailing below. Garcia v. Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003).

So viewed, the evidence establishes that Danny Gauldin, a police informant, made “controlled


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
buys” of marijuana on three occasions by contacting James Ricky Pruitt, Sr. with a request to

purchase the drugs. On two of the three occasions, Gauldin completed the purchase. In each of

those instances, Pruitt put Gauldin in touch with his son, James Ricky Pruitt, Jr. (“Little Ricky”),

who transacted the sale and gave the profits to his father. Three witnesses testified to the

transactions: Gauldin, Gauldin’s co-worker, Investigator Terry Barker, and Little Ricky. Video

and audiotapes of the transactions were also admitted.

       Their testimony, corroborated by the video and audiotapes, established that, on June 21,

2001, after police installed a hidden video camera in Gauldin’s truck and placed a hidden audio

tape recorder and an audio transmitter on his person, Gauldin went to Pruitt’s jobsite, Pruitt’s

Body Shop. In response to Gauldin’s request to purchase marijuana, Pruitt agreed to sell

marijuana to Gauldin for $100 per ounce, but directed Gauldin to return to the body shop after

6:00 p.m. to make the purchase. He gave Gauldin two telephone numbers to call. There is no

evidence that Gauldin in fact purchased any marijuana on that date.

       On June 27, Gauldin called Pruitt to ask if he could “line something up.” Pruitt,

reiterating his prior directions, told Gauldin to come to the body shop after 6:00 p.m. to make the

purchase. The police again equipped Gauldin with a hidden video camera, audio tape recorder,

and audio transmitter. The police also searched Gauldin to make certain marijuana was not

concealed on his person or in his truck and to determine the amount of cash he had. The police

also gave him the funds to use in making the purchase.

       When Gauldin arrived at the body shop, Little Ricky entered his truck while Pruitt spoke

to Gauldin at the driver-side door. Pruitt said he would stay at the body shop and “talk to his

buddies” while Gauldin and Little Ricky went to get the marijuana. Little Ricky directed

Gauldin to drive to a “Piggly Wiggly” store. Little Ricky took the purchase money from Gauldin

and entered the store while Gauldin waited in the truck. After Little Ricky returned with the

                                                -2-
marijuana, the two drove back to the body shop. Little Ricky put the marijuana on top of a

briefcase in the truck and exited.

       On July 3, 2001, Gauldin again called Pruitt with a request to buy marijuana. Pruitt

agreed to sell him two ounces of the drug for $200. Gauldin, equipped as before and subjected to

the same control measures, went to the body shop in his truck. Little Ricky entered the truck,

and the two men drove to the same Piggly Wiggly store. Little Ricky went into the store where

he purchased the marijuana using the money provided by Gauldin. He again transferred the

marijuana to Gauldin once they returned to the body shop.

       To address the Commonwealth’s case that Pruitt caused Little Ricky to distribute

marijuana, defense counsel cross-examined Gauldin about certain statements Little Ricky

purportedly made about his role in consummating the sales. The Commonwealth objected on the

ground that the questions called for hearsay, and the trial judge sustained the objection over

defense counsel’s argument that the testimony was admissible under the res gestae exception to

the hearsay rule. Defense counsel preserved his objection, proffering that he would have asked

Gauldin:

               whether or not [Little Ricky] made remarks to him that “this boy
               [Little Ricky’s source], he’s the one who makes me famous;” [and]
               referring to his father, “he ain’t got the right connections like I do,
               I got boys that will hook you up, if you want pot call before 5:00
               o’clock.” After he had delivered it to him, “that is the way I can
               get it for you any time you need it.” He said, “he’s gonna have
               some coming in, that’s some good,” expletive, “s-h-i-t, at a good
               price,” and on the first occasion, on . . . June 27th he said, “Any
               time you do business do it through me because I know the way my
               Pop is.” On July 3rd a question by Mr. Gauldin, “He ain’t got no
               problem with that?” Answer, “No, he better not, I’ll whip his ass.”
               And then a statement by [Little Ricky], “There’s my Daddy, and
               say I went with you to look at a job, alright.” Those were the
               questions that we wanted to cross-examine Mr. Gauldin about as to
               whether or not were made by [Little Ricky].




                                                -3-
       Testifying as part of the Commonwealth’s case, Little Ricky denied discussing a possible

sale of marijuana with Gauldin prior to the time he got into Gauldin’s truck on June 27. He

explained that his father, Pruitt, knew that he had a source from which to obtain marijuana; that

on June 27, Pruitt came to him and told him of Gauldin’s request to purchase marijuana; and that

Pruitt asked him to obtain the marijuana for Gauldin. Little Ricky agreed to do so and described

the transaction, noting that, after obtaining $100 from Gauldin for an ounce of marijuana, he paid

his source $85 or $90 for the drugs, and gave the profit from the sale to his father.

        Little Ricky further testified that the July 3 transaction was arranged in “almost the exact

same way it happened the first time.” Pruitt told Little Ricky that Gauldin “liked what he got the

first time” and that Gauldin again wanted to purchase marijuana. Pruitt asked Little Ricky if he

could get the marijuana for Gauldin. Little Ricky conducted the sale and gave the profits to

Pruitt.1 Asked by defense counsel if he thought Pruitt was responsible for his “being in trouble,”

Little Ricky replied, “I would never have been selling to Dan Gauldin if [Pruitt] hadn’t first set

me up selling to him.”

       Pruitt was tried by jury on January 15, 2003 and found guilty of both charges. The jury

fixed his sentences at ten years and imposed a $100,000 fine for each charge. By order entered

March 7, 2003, the trial court suspended five years of each of the sentences and vacated the

fines. From this judgment, Pruitt now appeals.




       1
         The Commonwealth also established that Little Ricky sold Gauldin marijuana on three
other occasions after the two described in his testimony, but that Pruitt had not been involved in
those sales. They thus were not material to the prosecution of the charges in the instant case.
Little Ricky explained that, after the first two sales, he concluded Gauldin was “okay to deal
with.” He thus told Gauldin to call him directly for future purchases “instead of going through
Daddy.” Little Ricky retained the profit from these sales.

                                                -4-
                        II. The Hearsay Evidence Was Properly Excluded

       Pruitt contends that Little Ricky’s statements, as proffered by defense counsel, were

improperly excluded because they fall within the res gestae exception to the hearsay rule. We

disagree.

                   “Hearsay is an out-of-court statement offered to prove the truth
               of the matter asserted.” Garcia v. Commonwealth, 21 Va. App.
               445, 450, 464 S.E.2d 563, 565 (1995) (en banc) (citing Tickel v.
               Commonwealth, 11 Va. App. 558, 564, 400 S.E.2d 534, 538
               (1991)). “‘Hearsay evidence is testimony in court, or written
               evidence, of a statement made out of court, the statement being
               offered as an assertion to show the truth of matters asserted therein,
               and thus resting for its value upon the credibility of the
               out-of-court asserter.’” Stevenson v. Commonwealth, 218
               Va. 462, 465, 237 S.E.2d 779, 781 (1977) (quoting McCormick on
               Evidence § 246 (2d ed. 1972)).

Taylor v. Commonwealth, 28 Va. App. 1, 9, 502 S.E.2d 113, 117 (1998) (en banc). It is

undisputed that the proffered out-of-court statements were offered to prove the truth of the matter

asserted, viz., that Little Ricky had contact with a source for the drugs sold to Gauldin and that it

was his idea, not Pruitt’s, to sell them to Gauldin. If believed, the statements rebutted the

Commonwealth’s proof that Pruitt caused Little Ricky to sell marijuana to Gauldin.

       Constituting hearsay, the statements were properly excluded because, contrary to his

contention, Pruitt failed to establish the statements came within the res gestae exception to the

rule. See id. at 10, 502 S.E.2d at 117 (stating that the party seeking to rely on the exception has

the burden of proving its admissibility).

               The “res gestae exception” has become a collective reference to a
               number of separately identifiable exceptions, the common
               denominator of which is that the declarant uttered the statement
               spontaneously and without deliberation. . . . “The spontaneity of
               the [declaration] is the guaranty of its trustworthiness in
               substitution of that provided by oath and cross-examination.”

Jones v. Commonwealth, 11 Va. App. 75, 83, 85, 396 S.E.2d 844, 849, 849-50 (1990) (quoting

Chappell v. White, 182 Va. 625, 633, 29 S.E.2d 858, 861 (1944)) (alteration in original); see also
                                                -5-
Charles E. Friend, The Law of Evidence in Virginia §§ 18-16 through 18-20, pp. 780-800

(6th ed. 2003). There is a presumption that the offered statement was not spontaneous. Friend,

supra p. 780 (citing Nicholaou v. Harrington, 217 Va. 618, 622, 231 S.E.2d 318, 322 (1977);

Jones, 11 Va. App. at 85, 396 S.E.2d at 850).

          Little Ricky’s statements at issue in this appeal do not qualify as res gestae statements;

they bespeak deliberation and constitute the product of thought and planning, not spontaneity.

The statements, both by their repetitive nature and their content, reflect Little Ricky’s considered

attempt to circumvent his middleman, Pruitt, and to induce Gauldin to purchase drugs from him

directly. In short, the stimulus for the statements was not the “facts of the event[s] in question[,]

voicing themselves though the participants or observers.” Jones, 11 Va. App. at 87, 396 S.E.2d

at 851. The stimulus for the statements emanated from Little Ricky’s calculated effort to

promote his business as a drug dealer and to “cut the defendant out” of the profits from the

sales.2

          Indeed the facts of this case parallel those in Jones. In Jones, this Court held certain

hearsay statements were not admissible under the res gestae exception and reversed a conviction

for distributing cocaine. Id. at 88, 396 S.E.2d at 851. Jones’s girlfriend, Gaskins, conducted a

narcotics sale while Jones sat in the back room of his apartment weighing additional cocaine on

his scales. See id. at 79, 396 S.E.2d at 846. As evidence of Jones’s participation in the cocaine

distribution, the Commonwealth introduced, and the trial court admitted, Gaskins’s statement to

the purchaser that “if her boyfriend was not there, [the purchaser] would have gotten a better

deal.” Id. at 79, 396 S.E.2d at 846. We reversed Jones’s conviction, holding that the statement

had been erroneously admitted under the res gestae exception, for which it did not qualify


          2
         The Commonwealth’s evidence, in fact, established that Little Ricky was ultimately
successful in his effort to end his father’s involvement in his drug sales to Gauldin after the
completion of the first two.
                                                  -6-
because “[t]he statement itself evinces deliberation. At a minimum, it does not overcome the

presumption that it was deliberative.” Id. at 87, 396 S.E.2d at 851.

       The deliberative import of Little Ricky’s statements in the present case is even more

compelling than those in Jones. They not only describe his effort to capture the drug sale

business as his sole enterprise, they do so repeatedly over the course of several weeks. To

ascribe spontaneity to such statements would be to turn the principle of res gestae on its head.

                                                                                       Affirmed.




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