COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Lemons and Senior Judge Hodges 

Argued at Alexandria, Virginia 

STANLEY SELLERS 

 MEMORANDUM OPINION* BY 

v. Record No. 2833-97-4 JUDGE WILLIAM H. HODGES 

 DECEMBER 15, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

David T. Stitt, Judge 

 M. Dale Phelps, Assistant Public Defender, 

for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Stanley Sellers (appellant) was convicted in a jury trial of 

driving on a revoked operator's license after having been 

adjudicated a habitual offender and of driving while under the 

influence of alcohol. He contends that the trial court erred by 

admitting hearsay testimony of Officer Fred Kessel, who had no 

independent recollection regarding the results of the sobriety 

tests he administered to appellant, without meeting the 

requirements of the past recollection recorded exception to the 

hearsay rule. We disagree, and affirm the convictions. 

 I. 

 At 1:30 a.m. on December 3, 1995, Officer Kessel observed 

appellant drive up to a green traffic light, stop his vehicle for 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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three to five seconds, make a "real wide" left turn, and then 

drive a block, straddling the broken white line between the two 

lanes. After observing appellant turn into a 7-Eleven parking 

lot, drive up behind a marked police cruiser, and then abruptly 

make a left turn and a U-turn, Kessel stopped appellant. As 

Kessel approached appellant, he noticed a "heavy odor of alcohol" 

emanating from appellant's lips. Appellant "fumbled through some 

papers for a little while that didn't produce anything." When 

appellant stepped out of the car, Kessel noticed that appellant's 

eyes were bloodshot. Kessel asked appellant to perform sobriety 

tests. 

 At trial, when Kessel testified about these sobriety tests, 

Kessel said, "[T]o be completely accurate, I'd like to go to my 

notes." Kessel then began to testify about the "heel-to-toe" 

test he asked appellant to perform. When asked how appellant 

performed the test, Kessel said, "I'm going to pull my notes," 

and acknowledged that, without referring to his notes, he could 

not specifically recall how appellant performed the tests. 

Kessel testified that he prepared the notes on the night of the 

incident. Defense counsel objected to Kessel's use of the notes, 

and argued that the foundation laid was not "specific enough for 

past recollection recorded." The trial court overruled the 

defense's objection. 

 Kessel testified that during the "heel-to-toe" test, 

appellant lost his balance. Kessel had to explain the 
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"finger-to-nose" test to appellant twice "to get him started." 

Initially, appellant incorrectly performed the "finger-to-nose" 

test without closing his eyes. When appellant performed this 

test with his eyes closed, he "began to sway." Appellant failed 

to follow the directions and missed his nose twice. When asked 

to count from twenty to zero, appellant stopped at sixteen and 

"started over three times." Appellant admitted drinking "one or 

two beers" to Kessel. 

 II. 

 "The general rule of past recollection recorded allows, over 

a hearsay objection, a witness with no independent recollection 

of an incident to testify directly from notes or reports if 

certain requirements are met." James v. Commonwealth, 8 Va. App. 

98, 102, 379 S.E.2d 378, 380 (1989) (citations omitted). To meet 

the requirements for this hearsay exception, 

 (1) the witness must have firsthand knowledge 

of the event; (2) the written statement must 

be the original memorandum made at or near 

the time of the event, when the witness had a 

clear and accurate memory of it; (3) the 

witness must lack a present recollection of 

the event; and (4) the witness must vouch for 

the accuracy of the written memorandum. 

Id. at 102, 379 S.E.2d at 380-81. See also Bailey v. 

Commonwealth, 20 Va. App. 236, 240-41, 456 S.E.2d 144, 146 

(1995); Kelley v. Commonwealth, 17 Va. App. 540, 548-49, 439 

S.E.2d 616, 621 (1994). 

 Kessel had firsthand knowledge of what took place prior to 

appellant's arrest. Kessel testified that he prepared the notes 
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"the night of the incident." Because appellant's arrest was 

around 1:30 a.m., Kessel had to have prepared his notes within 

hours, if not minutes, after the arrest. Kessel acknowledged, 

during his direct testimony, that he had no recollection of how 

appellant performed the sobriety tests without referring to his 

notes. Lastly, Kessel vouched for the accuracy of his notes when 

he testified that "to be completely accurate, I'd like to go to 

my notes." 

 Therefore, because the record shows that the Commonwealth 

met the requirements to permit Kessel to testify from his notes, 

Kessel's testimony was properly admitted under the "past 

recollection recorded" exception to the hearsay rule and did not 

constitute impermissible hearsay. 

 Accordingly, we affirm the judgments of the trial court. 

 Affirmed.