EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, February 25, 2009

Don't Have A Cow: Virginia Judge Excludes Double Hearsay Testimony In Trial Of Animal-Control Officer

Last May, Virginia animal-control officer Garland Nester went to kill an errant cow but killed a farmer instead. And now, pursuant to a (correct) ruling by the judge in the officer's involuntary manslaughter trial, jurors will not be able to hear testimony regarding the officer's anger in the wake of his futile attempt to track down the cow.

Last May, in Floyd County, Virginia, Nester unsuccessfully spent an hour trying to track down his fleeing cow, chasing him through a swamp, a copse, and along the Blue Ridge Parkway. Nester rented grazing land next to a farm belonging to 75-year-old Paul Belcher, who tried to help Nester corral the cow but instead was fatally shot with a bullet from Nester's .357-caliber semi-automatic pistol.

According to defense attorney David Damico,

Belcher's death was a tragic accident, the apparent result of a bullet ricocheting off the cow's right foreleg. Nester, he said, never saw Belcher, who was up on the raised roadway, Conner Grove Road, 190 feet from Nester and not in Nester's line of sight.

But, according to Amy Tharp, assistant chief medical examiner for Western Virginia,

the wound to Belcher's abdomen did not appear to come from a ricocheting bullet because it apparently entered his body in a tight spiral. If it had ricocheted, said Tharp, the bullet would have wobbled, just as a quarterback's pass does after a defensive lineman deflects it.

Frankly, I'm not sure how why the bullet either ricocheting or not ricocheting matters. I'm assuming that the prosecution is not arguing that Nester saw Belcher because it only charged him with involuntary manslaughter, so I'm not sure how the bullet ricocheting off the cow and striking Belcher would be appreciably different from the bullet striking Belcher directly. The only question, it seems to me, is why Nester was shooting (apparently four bullets) at his cow and whether that act was criminally negligent.

And in that regard, the aforementioned evidentiary ruling will make the prosecution's task difficult. Special Prosecutor Clifford Hapgood

had hoped to show jurors that Nester, 45, was so angry after spending nearly an hour chasing the cow...that he lost his cool, pulled out his .357-caliber semi-automatic pistol and fired four shots with little thought...[while] [h]is son, Travis, stood nearby. Judge Ray Grubbs refused to allow testimony about Nester's anger because it was hearsay evidence: Travis had told Belcher's brother and a high school teacher that his father was furious when he started firing at the cow. Grubbs would not allow Belcher's brother or the teacher to discuss the son's comment during their testimony.

This ruling was correct because testimony by these witnesses would have been double hearsay in that they would have been relating what Travis told them about what Nester told him. And according to the Court of Appeals of Virginia in West v. Commonwealth, 407 S.E.2d 22, 24 (Va.App. 1991), "in order for a hearsay declaration which contains hearsay within it to be admissible, both the primary hearsay declaration and each hearsay declaration included within it must conform to a recognized exception to the hearsay rule."

The problem for the prosecution in Nester's case was that while Nester's statements would be admissions of a party-opponent (the criminal defendant), there is no hearsay exception under which Travis' statements would have been admissible. Thus, the judge properly precluded the testimony.



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