Tuesday 1st 

 August, 1995. 

Joseph Cotton, Jr., Appellant, 

 against Record No. 2475-92-2 

 Circuit Court Nos. 91-100 and 91-102 

 Commonwealth of Virginia, Appellee. 

Upon Rehearing En Banc 

 Before Chief Judge Moon, Judges Baker, Benton, Coleman, 

Koontz, Willis, Elder, Bray and Fitzpatrick 

 Connie Louise Edwards (Connie Louise 

Edwards, P.C., on brief), for appellant. 

 Marla Lynn Graff, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

By opinion issued December 6, 1994, Cotton v. Commonwealth, 

19 Va. App. 306, 451 S.E.2d 673 (1994), we reversed and remanded 

Joseph Cotton, Jr.'s, convictions of robbery and use of a firearm in 

the commission of robbery. On petition of the Commonwealth, we 

granted rehearing en banc on two questions: (1) whether the trial 

court properly admitted the victim's statement, made during the 

robbery, that she knew the robber, and (2) whether the trial court 

properly excluded from evidence a plastic bag that contained a palm 

print of an unidentified person other than Cotton. On rehearing en

banc, we reverse the panel decision and find no error with respect to 

the admission of the victim's statement. We affirm the panel decision 

and reverse the judgment of the trial court with respect to the 

exclusion of the plastic bag. 
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 I. 

Ms. Neal, a customer in the store at the time of the 

robbery, testified that as the robber, who wore a mask, left the store 

following the robbery, the victim, Chong Johnson, exclaimed, "I know 

him, that's not a real gun. I know him, that's not a real gun." The 

trial court admitted this statement under the excited utterance 

exception to the hearsay rule. 

"On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. The judgment of a trial court 

. . . will not be set aside unless it appears from the evidence that 

the judgment is plainly wrong or without evidence to support it." 

Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 

(1990) (en banc). The victim's statement was made during the course 

of an armed robbery, as the perpetrator left the store. Those 

circumstances support the trial court's factual finding that the 

statement was made spontaneously, induced by the stress and excitement 

of the robbery. 

Moon, C.J., Baker, Coleman, Willis, Elder, Bray and 

 Fitzpatrick, JJ., concurring. 

 Benton, J., with whom Koontz, J., joins, dissenting. 

 II. 

For the reasons stated in the panel decision, 19 Va. App. at 

314, 451 S.E.2d at 677, we hold that the trial court erred in 

excluding the plastic bag from the evidence. 

Moon, C.J., Benton, Coleman, Koontz, Willis, Elder, Bray and 

 Fitzpatrick, JJ., concurring. 

 Baker, J., dissenting. 
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____________________ 

Benton, J., concurring and dissenting. Koontz, J., joins in Parts I 

 and II of this order. 

For the reasons stated in my prior concurring and dissenting 

opinion, see Cotton v. Commonwealth, 19 Va. App. 306, 316, 451 S.E.2d 

673, 678-79 (1994) (Benton, J., concurring in part and dissenting in 

part), and for the reasons that follow, I dissent from Part I of the 

order, concur in Part II, and concur in the remand for a new trial. 

 I. 

Over Cotton's objection, the Commonwealth attempted to prove 

through the testimony of Barbara Neal that Chong Johnson made a 

statement as the robber was escaping. Neal testified that when the 

robber was leaving the store after taking money, Johnson said "I know 

him, that's not a real gun." Neal stated that Johnson appeared to be 

"trying to calm everybody down" when she made the statement. 

Johnson testified and denied, however, that she said 

anything during the robbery. Moreover, Johnson testified that during 

the robbery she was close to the robber and she was aware that he, 

indeed, had a real weapon. She testified that she recognized the 

weapon to be "a sawed-off shotgun" that was wrapped with tape. 

As the proponent "'seeking to have hearsay declarations of a 

witness admitted as an exception to the general rule [excluding 

hearsay evidence],'" Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 

386 (1984) (citation omitted), the Commonwealth bore the burden of 

establishing that the statement was an excited utterance. Id. "The 

party seeking to have hearsay declarations 'admitted as an exception 

to the general rule must clearly show that they are within the 
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exception.'" Jones v. Commonwealth, 11 Va. App. 75, 88, 396 S.E.2d 

844, 851 (1990) (emphasis added) (citation omitted). The Commonwealth 

failed to carry its burden because Johnson denied making the statement 

and because the proof was insufficient to establish that the statement 

was not the result of deliberation. 

The Commonwealth was obliged to prove that Johnson made a 

statement "at such time and under such circumstances as to preclude 

the presumption that it [was] the result of deliberation." Nicholaou 

v. Harrington, 217 Va. 618, 622, 231 S.E.2d 318, 322 (1977). "Where 

the credible evidence for and against this presumption is fairly 

balanced, the presumption of deliberation and narration is not 

rebutted." Jones, 11 Va. App. at 85, 396 S.E.2d at 850. "The 

ultimate test is whether it appears that 'the facts [were] talking 

through the party or . . . the party [was] talking about the facts.'" 

Doe, 227 Va. at 472, 318 S.E.2d at 385-86 (citation omitted). 

The rationale behind admitting an excited utterance over a 

hearsay objection is premised upon the existence of evidence tending 

to prove that such statement was actually made. "'The spontaneity of 

the utterance is deemed to guarantee its trustworthiness, even though 

it is hearsay evidence which would otherwise be excluded.'" Doe, 227 

Va. at 471, 318 S.E.2d at 385 (quoting Nicholaou, 217 Va. at 622, 231 

S.E.2d at 321-22). However, the evidence did not prove that Johnson 

made the statement. Johnson emphatically denied that she said 

anything. In addition, Johnson testified at trial that during the 

event she knew that the robber had an actual gun -- a fact contrary to 

the statement Neal sought to attribute to Johnson. With these 
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manifest conflicts in the Commonwealth's own evidence, the 

Commonwealth failed to prove the statement was made by Johnson. 

Furthermore, the Commonwealth's evidence did not establish 

that "'[t]he statement [was] . . . instinctive rather than narrative 

or the result of deliberation.'" Upton v. Commonwealth, 172 Va. 654, 

657, 2 S.E.2d 337, 339 (1939) (citation omitted). Neal's testimony 

that Johnson was "trying to calm everyone down" when Johnson made the 

purported statement proved that the purported statement was a 

narrative resulting from deliberation. Id. The statement reflected a 

reasoned and purposeful declaration rather than a "spontaneous and 

impulsive" statement. Id. Thus, Neal's testimony did "not overcome 

the presumption that [the purported statement] was deliberate." 

Jones, 11 Va. App. at 87, 396 S.E.2d at 851. 

For these reasons, I dissent from Part I of the order. I 

would uphold the panel's decision barring Neal's testimony as to this 

matter. 

 II. 

I concur in Part II of the order upholding the panel 

decision that the trial judge erred in excluding the plastic bag from 

evidence. 

 III. 

I also adhere to my view that the panel erred in approving 

the trial judge's decision to allow testimony concerning fingernail 

identification. See Cotton, 19 Va. App. at 316, 451 S.E.2d at 678 

(Benton, J., concurring in part, dissenting in part, and concurring in 

the judgment reversing the convictions and remanding for a new trial). 
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____________________ 

Baker, J., concurring in part, dissenting in part. 

The admissibility of evidence is a matter of law to be 

determined by the trial court. 1 C. Friend, The Law of Evidence in 

Virginia § 8.1 (4th ed. 1993). To be admissible, the evidence must be 

both relevant and material. Johnson v. Commonwealth, 2 Va. App. 598, 

601, 347 S.E.2d 163, 165 (1986). 

The ultimate inquiry in determining whether 

evidence is both material--tending to prove a 

matter which is properly at issue in the case--and 

relevant--tending to establish the proposition for 

which it is offered--is: Does the evidence tend 

to prove a proposition which is itself provable in 

the case? 

Id. In finding that the trial court committed reversible error, the 

majority necessarily holds that the trial court abused its discretion. 

 The reason given by the majority in holding that the trial court 

abused its discretion is that the plastic bag containing the 

unidentified palm print tended to "exonerate" appellant. I 

respectfully disagree with that conclusion. 

The plastic bag would not refute the affirmative evidence 

that the fingernail found in the cash drawer was that of appellant. 

Nor would it refute the testimony of the eyewitness who exclaimed, "I 

know him" and later, at trial, positively identified appellant as the 

robber who placed his hand in the cash drawer and withdrew monies 

therefrom. Moreover, it would not support appellant's alibi defense. 

 If none of these, then for what purpose could it be used to 

"exonerate" appellant? I respectfully submit that the plastic bag did 
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not tend to prove a proposition which was itself provable in this 

case. 

Except for the holding by the majority that the trial court 

erroneously refused to admit the plastic bag into evidence, I concur 

with the remainder of that opinion. 

Accordingly, I would affirm the judgment of the trial court. 

____________________ 

In accordance with the majority's decision, the judgments 

are reversed and annulled, the verdicts of the jury are set aside, and 

the case is hereby remanded to the trial court for retrial, if the 

Commonwealth be so advised. 

Further, that part of the opinion previously rendered by a 

panel of this Court on December 6, 1994 pertaining to Chong Johnson's 

statement is withdrawn and the mandate entered on that date is 

vacated. 

The trial court shall allow court-appointed counsel for the 

appellant a total fee of $600 for services rendered the appellant, in 

addition to counsel's costs and necessary direct out-of-pocket 

expenses. 

This order shall be published and certified to the trial 

court. 

 A Copy, 

 Teste: 

 Richard R. James, Clerk 

 By: 

 Deputy Clerk