Present Sense Impression Exception to the Hearsay Rule In Virginia
"It is generally accepted that a statement accompanying and characterizing an act is admissible as a recognized exception to the hearsay rule.
Virginia recognizes this type of statement as the 'present sense impression' exception to the hearsay rule." Clark v. Commonwealth, 14 Va. App. 1068, 1070, 421 S.E.2d 28, 30 (1992).
Moreover, admissibility is not limited to statements made by or to the person performing the act, "'other statements describing or explaining the act, even if not made by or to the person performing it, appear to be admissible under the modern view of the exception.
''It is apparently sufficient if the declaration is being uttered by someone who is witnessing the event." Id. (quoting C. Friend, Law of Evidence in Virginia 240, at 185 (3d ed. 1988 & Supp. 1991).
'Three factors must exist in order for the present sense impression exception to apply. They are:
(1) the declaration must have been contemporaneous with the act;
(2) it must explain the act;
(3) it must be spontaneous.' Id. (quoting Foley v. Commonwealth, 8 Va. App. 149, 161, 379 S.E.2d 915, 922, aff'd on reh'g en banc, 9 Va. App. 175, 384 S.E.2d 813 (1989)).
"Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
A statement offered for any other purpose is not hearsay and is, therefore, governed by the other rules of admissibility." Garcia v. Commonwealth, 21 Va. App. 445, 450, 464 S.E.2d 563, 565 (1995) (en banc).
"'The party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility.'" Braxton v. Commonwealth, 26 Va. App. 176, 183-84, 493 S.E.2d 688, 691 (1997) (quoting Neal v. Commonwealth, 15 Va. App. 416, 420-21, 425 S.E.2d 521, 524 (1992)).
"A statement comes within the excited utterance exception to the hearsay rule and is admissible to prove the truth of the matter stated, when the statement is spontaneous and impulsive, thus guaranteeing its reliability. 'There is no fixed rule by which the question whether the statement is admissible as an excited utterance can be decided. Resolution of the issue depends upon the circumstances of each case.
The statement must be prompted by a startling event and be made at such time and under such circumstances as to preclude the presumption that it was made as the result of deliberation. In addition, the declarant must have firsthand knowledge of the startling event.
The decision whether the statement qualifies as an excited utterance lies within the discretion of the trial court." Id. at 184, 493 S.E.2d at 691 (quoting Goins v. Commonwealth, 251 Va. 442, 460, 470 S.E.2d 114, 126 (1996)).