                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia


DENNIS ALLEN BISHOP
                                         MEMORANDUM OPINION * BY
v.   Record No. 2923-98-2                 JUDGE MARVIN F. COLE
                                              MARCH 14, 2000
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                       Jay T. Swett, Judge

          David L. Heilberg; Teresa E. McGarrity,
          Qualified Third Year Practitioner (H. Dill
          Battle, III; Neal J. Goldberg, Qualified
          Third Year Practitioner; McGuire, Woods,
          Battle & Boothe, LLP; Pro Bono Criminal
          Adjudication Project of the University of
          Virginia School of Law, on briefs), for
          appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Dennis Allen Bishop, appellant, appeals his conviction for

unlawfully and feloniously operating a motor vehicle on a public

highway after having been declared an habitual offender, a second

or subsequent offense in violation of Code § 46.2-357.    He

contends that the trial court committed reversible error in

admitting the hearsay testimony of a civilian, Barry McLane,

regarding Officer M.G. Davis's out-of-court identification of


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
appellant.   Because we find that Davis's out-of-court statement to

McLane qualified as an exception to the hearsay rule, we affirm

the trial court's decision.

     The evidence established that on July 1, 1995, Officer

Davis parked his marked patrol vehicle in the Holiday Deli's

parking lot, just off the street, in order to monitor and

disperse loiterers.    McLane had been on more than ten

ride-alongs with police officers prior to July 1995.

     As the crowd near the Holiday Deli dispersed, Davis noticed

a Chevrolet Blazer vehicle pulling a Camaro vehicle on a trailer

driving towards him.   The Blazer was being driven out of the

parking lot towards the street.   As the Blazer slowly passed by

Davis, he recognized appellant as the driver of the vehicle.

Davis testified that he had no trouble seeing appellant; that

there was plenty of light in the parking lot; and that he

immediately recognized appellant.   Davis knew appellant because

he had contact with him several times during his fifteen years

as a police officer.   Davis saw appellant return his eye contact

and appellant looked scared.   Davis knew appellant was an

habitual offender.    Because of this, he was surprised to see him

driving a motor vehicle.   He testified that he immediately said

to McLane, "[T]hat's Dennis Bishop, he's a[n] habitual

offender."

     McLane testified that he only glimpsed the passing driver

and was unable to identify him.   However, McLane testified that

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when Davis saw appellant's vehicle, he suddenly stated,

"[T]hat's Dennis Bishop, he's an habitual offender."

                         I.    Davis's Statement

     Officer Davis followed the Blazer out of the parking lot

and down the street.   He checked the license plate on the

trailer and noticed that it lacked the proper trailer tags.

Davis initiated a traffic stop but the Blazer did not stop.

Davis pursued it onto the interstate highway.       Eventually, the

trailer spun out of control and the car that was being towed was

thrown off the trailer onto the interstate.        Officer Davis

stayed with the car.   The Blazer proceeded down the interstate

in the wrong direction.       A short time later, other officers

found the Blazer abandoned on the interstate median strip.         The

driver had escaped.    The abandoned Blazer was owned by David

Bishop, the appellant's father.

     Appellant denied that he had been driving the Blazer on the

night of July 1, 1995.    Both he and his girlfriend testified

that they were together in West Virginia from June 29, 1995 to

July 3, 1995.

     Prior to trial, appellant filed a motion in limine, stating

that a Commonwealth witness, Barry McLane, was "expected to

testify as to a comment made by Officer Davis, the chief witness

for the Commonwealth, while in the presence of McLane" who was a

ride-a-long the evening of the offense.      Appellant requested

that the trial court find this testimony inadmissible.

                                   - 3 -
Immediately prior to trial, the trial judge heard this motion

and representations of counsel, and held that this was a

"spontaneous utterance" and was an exception to the hearsay

rule.    He overruled appellant's motion in limine and permitted

McLane's testimony to be admitted in evidence.

        The sole question presented by appellant in this appeal is:

Did the trial judge commit reversible error in admitting the

hearsay testimony of a civilian regarding a police officer's

out-of-court identification of the defendant?    The

Commonwealth's response was that McLane's statement was

admissible as an exception to the hearsay rule.

        "Hearsay is an out-of-court statement offered to prove the

truth of the matter asserted.    A statement offered for any other

purpose is not hearsay and is, therefore, governed by the other

rules of admissibility."     Garcia v. Commonwealth, 21 Va. App.

445, 450, 464 S.E.2d 563, 565 (1995) (en banc) (citation

omitted).    "'[T]he party seeking to rely upon an exception to

the hearsay rule has the burden of establishing admissibility.'"

Braxton v. Commonwealth, 26 Va. App. 176, 183-84, 493 S.E.2d

688, 691 (1997) (quoting Neal v. Commonwealth, 15 Va. App. 416,

420-21, 425 S.E.2d 521, 524 (1992)).

             "A statement comes within the excited
             utterance exception to the hearsay rule and
             is admissible to prove the truth of the
             matter stated, when the statement is
             spontaneous and impulsive, thus guaranteeing
             its reliability. 'There is no fixed rule by
             which the question whether the statement is

                                 - 4 -
             admissible as an excited utterance can be
             decided. Resolution of the issue depends
             upon the circumstances of each case.'
                  The statement must be prompted by a
             startling event and be made at such time and
             under such circumstances as to preclude the
             presumption that it was made as the result
             of deliberation. In addition, the declarant
             must have firsthand knowledge of the
             startling event. The decision whether the
             statement qualifies as an excited utterance
             lies within the discretion of the trial
             court."

Id. at 184, 493 S.E.2d at 691 (quoting Goins v. Commonwealth,

251 Va. 442, 460, 470 S.E.2d 114, 126 (1996) (other citations

omitted)).

        We hold that Davis's out-of-court statement to McLane was

admissible under the excited utterance exception to the hearsay

rule.    The statement was spontaneous and impulsive and was

prompted by the startling and unexpected event of seeing

appellant, who Davis knew to be an habitual offender, driving a

motor vehicle.    Davis clearly had firsthand knowledge of the

startling event.    Davis's ample prior experience with appellant

rendered Davis's statement sufficiently reliable to be admitted

as an excited utterance.    Contrary to appellant's contention, no

evidence established that Davis's statement was the result of

reflection or deliberation.    Indeed, appellant made no objection

to Davis's testimony at trial regarding his statement and does

not question its admissibility on appeal.




                                 - 5 -
                       II.   McLane's Statement

     The question presented in this appeal is limited to the

admissibility of McLane's testimony that he heard Davis make the

Davis statement.    McLane's entire statement at trial was, in

pertinent part:

           When we pulled in, I was just kind of
           looking to the right and then I noticed a
           vehicle looked like some -- big Bronco
           pulling a trailer with a car in the back of
           it, went by -- was going by us. And all of
           a sudden Greg [Davis] says, that's Dennis
           Bishop, he's an habitual offender.

     We find that McLane's statement is admissible under the

present sense impression exception to the hearsay rule.

     "It is generally accepted that a statement accompanying and

characterizing an act is admissible as a recognized exception to

the hearsay rule.   Virginia recognizes this type of statement as

the 'present sense impression' exception to the hearsay rule."

Clark v. Commonwealth, 14 Va. App. 1068, 1070, 421 S.E.2d 28, 30

(1992) (citation omitted).    Moreover, admissibility is not

limited to statements made by or to the person performing the

act, "'other statements describing or explaining the act, even

if not made by or to the person performing it, appear to be

admissible under the modern view of the exception.'    '[I]t is

apparently sufficient if the declaration is being uttered by

someone who is witnessing the event.'"     Id. (quoting C. Friend,

Law of Evidence in Virginia § 240, at 185 (3d ed. 1988 & Supp.

1991).   "'Three factors must exist in order for the present

                                 - 6 -
sense impression exception to apply.    They are:   (1) the

declaration must have been contemporaneous with the act; (2) it

must explain the act; and (3) it must be spontaneous.'"       Id.

(quoting Foley v. Commonwealth, 8 Va. App. 149, 161, 379 S.E.2d

915, 922, aff’d on reh'g en banc, 9 Va. App. 175, 384 S.E.2d 813

(1989)).

     McLane's statement fit all three factors and, therefore,

was admissible as a present sense impression.   Davis, who

witnessed appellant driving the Blazer, suddenly stated that

appellant was the driver and that he was an habitual offender.

That declaration explained or described appellant's illegal

conduct.   It also identified the appellant as the driver of the

vehicle.   "It also was spontaneous, as it reflected [Davis's]

personal perceptions at that time and was not a narrative

reflection of a past event."    Foley, 8 Va. App. at 164, 379

S.E.2d at 923.

     "Although the cases sometimes seem to indicate that the

declaration must be uttered by the very person who is performing

the act described, it is apparently sufficient if the

declaration is being uttered by someone who is witnessing the

event."    C. Friend, Law of Evidence in Virginia § 18-18, at 164

(4th ed. 1993).

     The trial court did not err in admitting McLane's testimony

regarding Davis's out-of-court statement as an exception to the

hearsay rule.    Accordingly, we affirm appellant's conviction for

                                - 7 -
driving after having been declared an habitual offender, a

second or subsequent offense.

                                                        Affirmed.




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