Dora Ann Swain v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
DORA ANN SWAIN OPINION BY
v. 	Record No. 0610-97-3 	JUDGE SAM W. COLEMAN, III
DECEMBER 1, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Richard C. Pattisall, Judge
Steven P. Milani (Michelle C. F. Derrico;
Office of the Public Defender, on briefs),
for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Dora Ann Swain was convicted in a jury trial of possession
of cocaine with the intent to distribute. 	On appeal, she
contends (1) the trial court erred by admitting a police
officer's inadmissible hearsay testimony, and (2) erred by ruling
that it had no authority to suspend or modify the jury's sentence
unless it "shocked the conscience of the court or was wholly
beyond the evidence presented." 	We find that the police
officer's challenged testimony was not inadmissible hearsay.
Therefore, we affirm the conviction. 	On the sentencing issue,
the Attorney General concedes, and we agree, that the trial judge
applied an incorrect standard in denying the motion to suspend or
modify the sentence. 	The trial judge stated that he could
suspend only a sentence that "shocked the conscience of the
court." 	Because the trial judge had much broader discretion to

-2-
suspend the sentence, we vacate imposition of the sentence and
remand the case for reconsideration of the motion to suspend or
modify the sentence.
I. 	BACKGROUND
During execution of a search warrant at Swain's home, a
police officer stationed at the front door witnessed Swain arrive
by car. 	The officer testified that as Swain exited the vehicle
and walked toward her house, Juanita Watson came from "around" a
parked van and joined Swain.
The officer testified that as Watson approached Swain, Swain
said, "something similar to, what do you need or what do you
want." 	Watson replied: 	"A twenty." 	The officer testified that
"a twenty" is street terminology for a small piece of crack
cocaine. 	According to the officer, Swain "advised Ms. Watson to
wait a minute or wait just a minute, [or] something similar."
Swain made a pretrial motion to suppress Watson's statement,
"a twenty," as inadmissible hearsay. 	Swain contends the
Commonwealth offered Watson's statement for its implied assertion
that Swain was a drug dealer. 	The trial court denied the motion
to suppress Watson's statement.
At the sentencing hearing, counsel for Swain asked the trial
court to suspend part of the jury's recommended sentence. 	In
denying the motion to suspend the sentence, the trial court
stated: Now, with regard to whether the jury's
recommended sentence is followed or not, the
standard of measurement there is . . . if

-3-
it's a sentence . . . that shocks the
conscience of the Court, that is wholly
beyond the evidence of the case, a
miscarriage of justice then the Court has the
power and authority to step in and should
step in. 	On the other hand, if it's within
the range of punishment, in this instance at
the lower end and is justified by the
evidence . . . then the Court has no
authority to set that jury verdict aside just
because the Court might have done differently
or may have given a lesser sentence had the
Court heard the case instead of the jury.
II. 	ANALYSIS
A. 	Hearsay
In reviewing a trial court's ruling on a motion to suppress,
we view the evidence in the light most favorable to the
prevailing party. 	See Alvarez v. Commonwealth, 24 Va. App. 768,
775, 485 S.E.2d 646, 649 (1997). 	"`The 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.'" 	Brown v. Commonwealth, 21 Va. App. 552, 555, 466
S.E.2d 116, 117 (1996) (quoting Crews v. Commonwealth, 18 Va.
App. 115, 118, 442 S.E.2d 407, 409 (1994)). 	"Hearsay evidence is
testimony in court . . . of a statement made out of court [that
is] 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." 	Taylor v. Commonwealth, 28 Va. App.
1, 9, 502 S.E.2d 113, 117 (1998) (en banc) (citations omitted).
Watson's statement that she wanted "a twenty," is hearsay
only if offered to prove the truth or falsity of the matter

-4-
asserted therein. 	See Brown v. Commonwealth, 25 Va. App. 171,
179, 487 S.E.2d 248, 252 (1997) (en banc). 	Determining whether a
statement is offered to prove the truth or falsity of the matter
asserted requires an analysis of the purpose for which the
statement is offered into evidence. 	See generally Lawrence H.
Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957, 958-59 (1974)
(presenting a method for analyzing the hearsay rule).
We determine, therefore, the purpose for which the
Commonwealth offered the statement. 	The literal truth of the
assertion -- that Watson wanted cocaine -- was irrelevant and was
not the purpose for which the Commonwealth offered the statement.
Additionally, Watson's belief that Swain was a drug dealer was
not the reason the Commonwealth offered her statement into
evidence. 	Instead, the Commonwealth offered Watson's statement,
"a twenty," to explain and give meaning to Swain's statements.
Watson's statement gives meaning to Swain's declarations "what do
you want," and "just a minute." 	In context, Watson's response "a
twenty," explained that Swain's first inquiry was an offer to
sell drugs, and the statement, "just a minute" meant, "I will
provide you with drugs in a minute," both of which were
admissible as party admissions to prove Swain's intent. 	See
Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675,
678-79 (1993).
We have recognized that words offered solely to give
context to party admissions are not hearsay and are admissible.

-5-
"Words which constitute a question or accusation that result in a
party admission are not barred by the hearsay evidence rule. 	It
is only when the prompting statements have the quality of
evidence (offered for the truth of the matter asserted) that they
become inadmissible hearsay." 	Atkins v. Commonwealth, 13 Va.
App. 365, 368, 412 S.E.2d 194, 196 (1991) (citation omitted).
A statement offered to provide context to an admission is
not hearsay because it is not offered to prove the truth of the
matter asserted therein. 	The evidentiary value of Watson's
statement, "a twenty," depends solely on the literal words spoken
and not on what was actually on Watson's mind. 	In other words,
Watson's statement does not "rest[] for its value upon the
credibility of the out-of-court asserter." 	Taylor, 28 Va. App.
at 9, 502 S.E.2d at 117. 	See e.g., State v. Miller, 921 P.2d
1151, 1159 (Ariz. 1996) (finding that declarant's statement, made
during the course of an interrogation, was not hearsay because it
was admitted for its effect on the defendant rather than its
substantive content); Williams v. State, 669 N.E.2d 956, 958
(Ind. 1996) (admitting informant's statements in course of
conversation as non-hearsay because the responses that they
prompted "constituted the evidentiary weight of the
conversation"); Worden v. State, 603 So.2d 581, 583 (Fla. App.
1992) (stating that detectives' questions and statements were not
offered for their truth, but rather to place defendant's answers
in context).

-6-
Because the Commonwealth did not offer Watson's statement,
"a twenty," for the truth or falsity of the statement, it was not
hearsay, and the trial judge did not err in admitting it.

-7-
B. 	Sentencing
A trial court's ruling on a motion to suspend a jury's
sentence rests within the sound discretion of the trial court and
should not be overturned absent an abuse of that discretion. 	See
Lane v. Commonwealth, 223 Va. 713, 719, 292 S.E.2d 358, 362
(1982).
The trial judge ruled that he lacked authority to modify a
jury's recommended sentence unless the sentence "shocked the
[court's] conscience" or was "wholly beyond the evidence of the
case."
The Commonwealth concedes the trial court misstated its
authority to modify a jury's recommended sentence. 	The jury's
sentence is a "first-step decision" in determining the fair and
appropriate punishment for a crime. 	See Duncan v. Commonwealth,
2 Va. App. 342, 345, 343 S.E.2d 392, 394 (1986) (citing Vines v.
Muncy, 553 F.2d 342, 349 (4th Cir. 1977)). 	The jury's sentence
is subject to the judge's review after considering at the
sentencing hearing various mitigating, extenuating, or even
aggravating circumstances. 	See id. 	By granting the trial court
authority to review the jury's sentence, "the legislature
intended to leave the consideration of mitigating circumstances
to the court. 	It is the court that has the responsibility of
pronouncing the sentence after the maximum punishment is fixed by
the jury." 	Id. 	"Failure to consider whether a jury sentence
should be mitigated because of a belief that the jury sentence is

-8-
inviolable is an abuse of discretion." 	Bruce v. Commonwealth,
9 Va. App. 298, 302-03, 387 S.E.2d 279, 281 (1990).
For the foregoing reasons, we uphold the trial court's
evidentiary ruling but we vacate execution of the sentence and
remand the case for a judge of the court to consider Swain's
motion to modify or suspend the jury's sentence.
Sentence vacated and remanded.