Home / Fulltext Opinions / Virginia Court of Appeals / GURGANUS v. COMMONWEALTH



APRIL 20, 1999

Record No. 2766-97-1





Westbrook J. Parker, Judge

Present: Judges Benton, Bray and Senior Judge

Argued at Norfolk, Virginia


Scott L. Reichle (Donald J. Reichle;
Reichle & Reichle, P.C., on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for

Derek Wayne Gurganus (defendant) was convicted
in a jury trial for statutory burglary and grand larceny,
violations of Code Sects. 18.2-91 and -95, respectively. He
complains on appeal that the trial court erroneously admitted
into evidence a prior consistent statement given to police by a
Commonwealth witness. Finding no error, we affirm the

Under familiar principles of appellate review,
we examine the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. See Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).


On the morning of September 9, 1996, James
Elkins, an employee of Hallmark Communications (Hallmark),
discovered evidence of forced entry into the business location in
Isle of Wight County and "stuff missing." Elkins
notified the local sheriff, and Lieutenant Tom Gibbons was
assigned to investigate. Gibbons proceeded to the scene,
inspected the building, and observed that "the entire place
had been ransacked," with damage to both rear entry and
interior doors. A subsequent inventory confirmed that numerous
items had been stolen, including a "console . . .
T.V." and nine pagers.

Shortly after Gibbons’ arrival,
Sheriff’s Deputy Willard "showed up" and provided
Gibbons with particulars relative to a suspicious vehicle he had
observed in the area at "about 4:30 [that] morning."
Gibbons ascertained that the vehicle was registered to a Virginia
Beach address and immediately contacted that city’s police,
requesting assistance in locating the car. Within hours, Virginia
Beach police stopped the vehicle, recovered the stolen TV and
pagers, and arrested the driver, Eric Landers, and his passenger,
Kevin (Greg) Baucom, for "possession of stolen

Gibbons learned immediately of the arrests,
proceeded directly to Virginia Beach, arriving within an hour,
questioned Landers, and obtained the following signed statement:

I, Eric Joseph Landers, left my house
on the night of September 8th with my two friends
[defendant and Baucom]. We went and picked up my car from
Newport News. Then we went to [defendant’s] house
and dropped his car off. We started driving to one of our
friend’s house just to say hey and see what he was
doing. But on the way there we had seen the store and
they (Derek [defendant] and Greg [Baucom]) were like,
hey, let’s hit this place. So after we visited our
friend for a little while we headed back towards where we
came from. They had told me to let them out and go pick
them up in twenty minutes. I drove around and they
. . . told me to drive down the dirt road so
they could put the things in the car. So like an idiot, I
did. I was sitting in the car telling them to leave
because what they were doing was stupid. I never set one
foot inside that building. That is the honest truth. All
I did was get out of the car and walk where they could
hear me and tell them I was leaving so they had better
come on.

I am so sorry for even driving around.
Even though I didn’t take anything I still should
have not ever drove around for them. I was scared and I
didn’t know what to do. I’m not used to being
scared so I just went along and drove around. I’ve
never been more scared than I am right now. One of them
has said (pretty much said) if someone rats them out
they’re dead, so I don’t know what to do, but I
am telling the truth and I will cooperate with you one
hundred percent. I just want to go to college and make
something of myself. I just hope that I haven’t
already ruined that chance.

Landers’ trial testimony, as a
Commonwealth witness, was substantially consistent with his
earlier statement to Gibbons, and the Commonwealth attempted to
introduce it into evidence. Defendant, however, objected, arguing
that the Commonwealth was attempting to improperly
"bolster" Landers’ testimony. In sustaining the
objection, the trial court concluded that the evidence was
inadmissible "until [defense counsel] attacks
[Landers’] credibility."

Defendant concedes on brief that counsel
subsequently "cross-examined Mr. Landers in an attempt to
impeach his testimony and challenge his credibility." In
response to such questioning, Landers acknowledged that the
Virginia Beach charge had been "dropped" following his
arrest in Isle of Wight on September 12, 1996 for the instant
offenses and that trial in Isle of Wight had been delayed until
he testified in the subject prosecution. Landers admitted
"hope" that "something good" would result
from his testimony but steadfastly denied that anyone promised
"anything" in return. Defendant did not explore
Landers’ motives in making the earlier statement to Gibbons.

The Commonwealth recalled Gibbons on rebuttal
and offered Landers’ statement "to refute the notion
that’s been put forward by the defense that he’s
fabricated [a story] . . . to benefit himself."
Defense counsel objected, again arguing that the statement would
improperly bolster Landers’ credibility. The trial court,
however, concluded that the statement was then admissible as
"one of the exceptions to the hearsay rule" against
prior consistent statements and permitted Gibbons to relate it to
the jury. The disputed convictions followed and defendant, on
appeal, challenges the admissibility of the prior statement.


"As a general rule, a prior consistent
statement of a witness is inadmissible hearsay." Faison
v. Hudson
, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992)
(citations omitted). However, the Supreme Court of Virginia has
approved "a few narrowly circumscribed exceptions," id.,

when the opposing party: (1) suggests that
the declarant had a motive to falsify his testimony and the
consistent statement was made prior to the existence of that
motive, (2) alleges that the declarant, due to his
relationship to the matter or to an involved party, had a
design to misrepresent his testimony and the prior consistent
statement was made before the existence of that relationship,
(3) alleges that the declarant’s testimony is a
fabrication of recent date and the prior consistent statement
was made at a time when its ultimate effect could not have
been foreseen, or (4) impeaches the declarant with a prior
inconsistent statement.

Mitchell v. Commonwealth, 25 Va. App.
81, 84-85, 486 S.E.2d 551, 552-53 (1997) (citing Faison,
243 Va. at 404-05, 417 S.E.2d at 309-10); see also
1 Charles E. Friend, The Law of Evidence in Virginia
Sect. 4-12 (4th ed. 1993 & Cum. Supp. 1998). Manifestly,
such exceptions are intended to permit a party to "repel
. . . an imputation" that a witness testified
untruthfully by "show[ing] that the witness made a similar
statement at a time when the supposed motive [to fabricate] did
not exist." Repass v. Richmond, 99 Va. 508, 515, 39
S.E. 160, 163 (1901).

Thus, once defendant tainted Landers’
trial testimony with evidence suggesting that self-interests had
compromised his veracity, Landers’ prior consistent
statement to Gibbons was admissible to repair his credibility, provided
the statement was made before Landers had reason or design to
falsify. In seeking to escape the rule in this instance,
defendant maintains that "bias, interest or corruption"
inhered in Landers’ post-arrest statement to Gibbons. He
reasons that Landers then had a "motive to lie" and
"shift the blame from himself to another in an attempt to
get favorable treatment," although the record does not
disclose evidence of promise, expectation or other incentive to
fabricate at that time.

In support of his contention that Landers’
post-arrest custodial status, without more, infected his
statement with self-interest, defendant relies upon Smith v.
, 239 Va. 243, 387 S.E.2d 871 (1990). In Smith,
the accused had brutally murdered a police officer, following
earlier threats to "shoot the first [police officer] that
arrive[d]." Id. at 249, 387 S.E.2d at 874. Subsequent
to arrest, Smith explained to police that he fired his weapon in
self-defense after an assailant first shot him in the foot, a
clearly exculpatory statement reflective of a "motive to
lie," together with "sufficient time to fabricate a
story." Id. at 261, 387 S.E.2d at 880. In concluding
that Smith’s statement was inadmissible as a prior
consistent statement, the court looked beyond Smith’s mere
status as an arrestee and considered the content of the
statement, together with attendant circumstances, to find that it
was fraught with self-serving motive, corrosive of truth. See
id.; see also United States v. Henderson,
717 F.2d 135 (4th Cir. 1983), cert. denied, 465
U.S. 1009 (1984) (arrest alone does not establish a motive to

In contrast, Landers’ prior statement was
clearly inculpatory, a confession not simply to possession of
stolen goods, the Virginia Beach offense for which he was then in
custody, but, additionally, a ready admission to participation in
the then uncharged burglary and larceny in Isle of Wight. Unlike Smith,
Landers further implicated rather than exonerated himself. Thus,
the content of Landers’ statement, an appropriate
consideration to our analysis, countered any attribution of taint
arising solely from the attendant circumstances.

Moreover, the record offers no support to
defendant’s claim that Landers’ statement was otherwise
prompted by unspoken coercion, anticipation of leniency or favor,
or improper motive. No evidence suggests a scheme to mislead
through the statement, prior knowledge of its consequences or the
existence of inconsistent statements. During cross-examination of
Landers, defendant probed only his reasons for testifying at
, with no inquiry into considerations that induced
Landers to speak with Gibbons months previously. He now relies on
a silent record to discredit Landers’ statement.

It is well established that "[t]he
admissibility of evidence is within the broad discretion of the
trial court, and a ruling will not be disturbed on appeal in the
absence of an abuse of discretion." Blain v. Commonwealth,
7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) (citation omitted).
"Thus, we should reverse only upon ‘clear evidence that
[the decision] was not judicially sound’ and not simply to
substitute our ‘discretion for that rendered
below.’" Jefferson v. Commonwealth, 27 Va. App.
477, 488, 500 S.E.2d 219, 225 (1998) (alteration in original).

Under the instant circumstances, we find no
abuse of discretion in the admission of Landers’ prior
consistent statement into evidence and, accordingly, affirm the


Benton, J., dissenting.

By well established "general rule, a prior
consistent statement of a witness is inadmissible hearsay." Faison
v. Hudson
, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992). See
also Howard v. Commonwealth, 81 Va. 488, 490
(1886). As the Supreme Court noted in Faison, "[t]o
allow such a statement to corroborate and buttress a
witness’s testimony would be an unsafe practice, one which
not only would be subject to all the objections that exist
against the admission of hearsay in general but also would tend
to foster fraud and the fabrication of testimony." 243 Va.
at 404, 417 S.E.2d at 309. The rule is subject only to "a
few narrowly circumscribed exceptions." Id. See
also Gallion v. Winfree, 129 Va. 122, 127, 105 S.E.
539, 540 (1921).

Pertinent to this appeal, the Supreme Court has
described one of the narrow exceptions by "stat[ing] that,
when a witness is impeached by ‘a charge of bias, or
interest, or corruption,’ a prior consistent statement made
by the witness is admissible if it was made ‘before the
time when the supposed bias, or interest, or corruption could
have existed
.’" Faison, 243 Va. at 404, 417
S.E.2d at 309 (quoting Gallion, 129 Va. at 127, 105 S.E.
at 540) (emphasis added). I disagree with the majority’s
conclusion that Eric Landers’ statement qualified under this
exception. The evidence clearly proved that Landers’
statement was not made before the time when his bias,
interest, and corruption could have existed.

Landers made his statement after the police
arrested him. When Landers was stopped and arrested by the
police, Landers was driving a vehicle containing some of the
stolen property. Indeed, he possessed the only parcels of stolen
property that have been recovered — a large television and eight
pagers. After Landers was arrested in the City of Virginia Beach
for possession of the stolen property in his vehicle, he was
arrested in Isle of Wight County for breaking and entering.

Landers was interrogated after his first arrest
and made the statements at issue. When Landers was arrested for
possessing the stolen property and charged with a felony, those
events became the occasion that spawned the motive to exonerate
himself. At that time, he was not free from any desire, motive,
or impulse he may have had to mitigate the very apparent
appearance of his own culpability. As the Court noted in Gallion,
"[t]he [contact] between the parties [in the criminal event] was made before the [statement] introduced in evidence was had,
and the interest of [Landers] was the same at the date of the
[statement] as at the time of the trial. So that the [statement] was not admissible under this exception to the rule." 129
Va. at 127, 105 S.E. at 540. Simply stated, the evidence does not
establish that when Landers made the confession he was free of
motivation to mitigate the obvious appearance of his culpability
by spreading the blame and overstating Derek Wayne Gurganus’
involvement. Indeed, Landers’ statement implicates Gurganus
as the primary criminal actor and mitigates Landers’
participation through a self-serving description of Landers as an
unsuspecting companion who was "telling them to leave
because what they were doing was stupid." In a further
attempt to exonerate himself and promote his interest,
Landers’ statement contains an offer to "cooperate with
[the police] one hundred percent" and expresses a desire
"to go to college and make something of [him]self . . .
hop[ing] that [he has not] already ruined that chance."

At the time Landers made these revelations, he
had been arrested for possession of the stolen goods.
"Hence, he had a clear motive to lie about who [committed
the burglary], and he had sufficient time [between his arrest and
later interrogation] to fabricate a story." Smith v.
, 239 Va. 243, 261, 389 S.E.2d 871, 880 (1990).
Furthermore, the evidence proved that after Landers made his
statement, the felony charge was dismissed in the City of
Virginia Beach.

In affirming the trial judge’s admission
of the prior consistent statement, the majority creates a new
evidentiary standard. The majority looks to the
"inculpatory" nature of Landers’ statement and
concludes that it outweighs the "taint." In this
respect, the majority confuses the prior consistent statement
exception to the hearsay rule with the declaration against penal
interest exception. Furthermore, the majority’s analysis
fails to address the "narrowly circumscribed
exceptions" to the "general rule" barring
admission of the prior consistent hearsay statement. Faison,
243 Va. at 404, 417 S.E.2d at 309. I can find no case decision
holding that a prior consistent statement may be admitted under
an exception to the hearsay rule if the statement is proved to be

For these reasons, I would hold that the trial
judge erred, reverse the convictions, and remand for retrial.