Sapp v. Commonwealth

PRESENT: All the Justices

DEQUAN SHAKEITH SAPP
OPINION BY
v. Record No. 011244 JUSTICE DONALD W. LEMONS
March 1, 2002
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the trial court abused

its discretion by admitting into evidence prior testimony given

at a preliminary hearing by two witnesses who did not wish to

testify at trial and were therefore deemed “unavailable.”

I. Facts and Proceedings Below

Dequan Shakeith Sapp (“Sapp”) was charged with robbery,

malicious wounding, and two counts of use of a firearm in the

commission of those felonies. The victim, Billy W. Perkins, Jr.

(“Perkins”), and a witness to the crimes, Sean McClellan

(“McClellan”), testified at the preliminary hearing in general

district court and were subject to extensive cross-examination

by counsel for Sapp and counsel for a co-defendant. The general

district court certified the charges to the grand jury, and the

grand jury subsequently returned four indictments against Sapp.

At a bench trial where Sapp was represented by different

counsel than his preliminary hearing counsel, Perkins and

McClellan were sworn as witnesses, but both refused to testify

concerning the substance of the allegations. Perkins told the

Commonwealth that he was “too scared, you know, to say anything,
testify, for the simple fact I’d be jeopardizing my life.” The

Commonwealth asked Perkins if he had been threatened and he

replied, “[n]ot officially, but maybe one or two verbal

threats.” When asked if he remembered the events in question,

Perkins said, “I know what happened, but I’m too scared, you

know, to say, petrified. I got a little daughter to live for.”

At this point, the trial court and the Commonwealth further

inquired about Perkins’ fear of testifying:

COURT: Mr. Perkins, I can understand where
you’re coming from. The Court is not going
to force you to testify . . . . I’m not
going to force you.

PERKINS: Judge, that will lead now to me
being the cause of somebody dying or
somebody being the cause of my death, which,
I can just flee out of state right now where
my daughter lives. You see what I’m saying?

COURT: I can’t argue that. But is that the
way you want to live the rest of your life?

PERKINS: Yeah. See, I don’t want to be
affiliated with this.

COMMONWEALTH: Are you refusing to testify,
Mr. Perkins?

PERKINS: Yes.

The Commonwealth then sought to have Perkins’ preliminary

hearing testimony read into the record. Before permitting the

introduction of prior transcribed testimony, the following

exchange took place:

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 COURT: Mr. Perkins, you have previously
been on the stand and you are aware that
there is a charge of robbery pending against
Dequan Shakeith Sapp in which you were named
as the victim in the indictment. You have
told the Court that you remember the facts
of this situation which occurred,
apparently, on April 4, 1999, but that you
refused to relate those facts to the Court
at this time. You have received, you said,
I believe verbal threats and that you have
fear for your safety at this time if you
testify. Is this correct, everything that I
have just stated?

PERKINS: Correct. Yeah.

COURT: And I’m giving you an opportunity at
this point to either change your position,
that is, that you will testify, or – as I
say, I cannot compel you to testify, as I
told you previously, and won’t, but I just
want to be absolutely sure, for the record,
that this is your position, that you refuse
to testify.

PERKINS: Correct.

COURT: Now, I’m going to go one step
further. This is not to intimidate you in
any manner. This is not a threat in any
manner. Under the law, if you refuse to
testify in a case where you have given
testimony previously in the case, that
testimony can be read into the record and I
am here to tell you that it will be read
into the record. And it is still your
position that you refuse to testify?

PERKINS: Yes.

The Commonwealth continued the questioning by confirming

that Perkins remembered testifying under oath at the preliminary

hearing and remembered being questioned by both the

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Commonwealth’s Attorney and the defense attorneys. Citing Jones

v. Commonwealth, 22 Va. App. 46, 467 S.E.2d 841 (1996), the

trial court permitted the introduction into evidence of Perkins’

prior sworn testimony. Sapp objected, arguing that in Jones the

witness was unable to remember his former testimony. However,

Perkins suffered no problems with memory; he simply refused to

testify. Sapp further argued that the trial court could compel

Perkins’ testimony by threat of contempt.

McClellan took the witness stand and similarly stated: “I

don’t want to testify.” The trial court then inquired of

McClellan:

COURT: Why don’t you want to testify?

McCLELLAN: Because I don’t feel comfortable
testifying.

COURT: What do you mean, you don’t feel
comfortable testifying?

McCLELLAN: I don’t feel safe testifying.

. . . .

COURT: What do you mean, you don’t feel
safe? . . . What reason do you have to
believe that you aren’t safe if you testify?

. . . .

McCLELLAN: I just don’t feel safe.

COURT: Well, that’s not a reason. . . .
Has somebody given you a reason that you
don’t feel safe?

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McCLELLAN: I mean just hearing talk here
and there in the streets.

COURT: Hearing talk in the streets? What
kind of talk?

McCLELLAN: Like, “Don’t go to court,” talk.

COURT: Do you know who said that?

McCLELLAN: No. It’s just getting back to
me word of mouth . . . . I didn’t really
want to come [to court this morning].

COURT: I understand that you didn’t want to
come. Have you testified previously in this
case at the preliminary hearing?

. . . .

McCLELLAN: I think I did. Yeah.

COURT: Did you tell what happened at that
time?

McCLELLAN: Uh-huh.

COURT: Well, why, if you told at that time,
why don’t you feel you could do it today?

McCLELLAN: Because I realize that I made a
mistake testifying from the beginning.

COURT: Do you mean you made a mistake in
judgment or do you mean you told something
below in the District Court that wasn’t
true?

McCLELLAN: I mean in judgment.

COURT: So what you testified to in the
District Court was true, but you just don’t
want to testify today to the same thing?

McCLELLAN: Yeah. I think I forgot a lot of
the stuff I testified to, because it’s been
so long and I do so much stuff.

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COURT: Do you want the Commonwealth to
refresh your memory on it and then you
testify or are you just refusing to testify?

McCLELLAN: I mean if I’m going to jail for
refusing to testify –- I mean I just don’t
feel safe testifying, period. I mean I just
don’t feel safe.

COURT: Well, I understand that and I can’t
tell you that I’m going to protect you or
the police are going to protect you. I
can’t do that. I wish I could.

. . . .

McCLELLAN: It’s been so long that –- like
they was asking me a lot of questions out
there and I forgot a lot of it because, like
I said, I thought that all this was over
with and I just realized that it wasn’t over
with.

. . . .

COURT: If [the Commonwealth] refreshes your
memory with it, would that help you?

McCLELLAN: I really don’t even want to
speak about it.

COURT: I understand that you don’t want to,
but I’m going to tell you that if you refuse
to testify, that your testimony from the
District Court is going to go into the
record and it’s going to be used.

McCLELLAN: Nothing can happen to me for
refusing to testify?

COURT: I’m not going to put you in jail for
refusing to testify, no.

McCLELLAN: Okay. Then I don’t want to
testify.

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 COURT: You are refusing to testify?

McCLELLAN: Yes.

COURT: Even though the Court has told you
that I’m going to use your testimony
previously given?

McCLELLAN: Yes.

The Commonwealth then questioned McClellan to confirm that

he remembered testifying under oath at the preliminary hearing.

McClellan stated that he did remember testifying under oath, but

he “was smoking a lot of marijuana around that time, so [he]

forget[s] a lot of stuff.” He clarified that he “was telling

the truth that day,” but further stated that he “forget[s] so

much stuff.” Defense counsel also questioned McClellan about

his former testimony. When asked whether his mind was “messed

up” when he previously testified, McClellan replied that he

didn’t remember, “it’s been so long, I can’t even answer that

question truthfully.” McClellan further stated: “[I]f I was

under oath, I told the truth, but I can’t remember that exact

day. . . .” When asked if he was “absolutely sure” that he

would tell the truth under oath, he answered, “Yes, [if I was]

under oath.”

The Commonwealth moved to introduce McClellan’s prior

recorded testimony into evidence. Sapp made the same objections

that he made to the admission of Perkins’ former testimony.

Over Sapp’s objections, McClellan’s former testimony was read

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into evidence. Sapp was subsequently convicted of all four

charges and sentenced.

Sapp appealed his conviction to the Court of Appeals of

Virginia which affirmed the judgment of the trial court. Sapp

v. Commonwealth, 35 Va. App. 519, 529, 546 S.E.2d 245, 250

(2001). The Court of Appeals held that the two witnesses

against Sapp were “unavailable” by virtue of the “uncontradicted

evidence of their fear for their personal safety.” Id. at 528,

546 S.E.2d at 250. The Court of Appeals held that there was

no meaningful distinction between the
unavailable witness testimony by reason of
memory loss in Jones and the unavailable
witness testimony of Perkins and McClellan
by reason of fear. The unavailable
testimony of a fearful witness is as
unavailable as if the witness had forgotten
the events or become incapacitated. The
testimony is simply not available, and no
means is extant to make it so.

Id. at 526, 546 S.E.2d at 249.

The Court of Appeals further held that Perkins and

McClellan were subject to “extensive cross-examination at the

preliminary hearing by two attorneys”; therefore the court

concluded that Sapp had received and exercised his right of

cross-examination, regardless of the fact that he had different

representation at trial. Id. at 528-29, 546 S.E.2d at 250.

Sapp appeals from the adverse judgment of the Court of Appeals.

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 On appeal to this Court, Sapp argues that both Perkins and

McClellan were physically available at trial and actually

testified under oath about their concerns. Sapp maintains that

their refusal to testify about the alleged criminal offense

because of generalized concern for their safety was insufficient

to establish the unavailability of their testimony and that the

trial court erred in permitting the introduction of prior

testimony from the preliminary hearing.

II. Standard of Review

We review the trial court’s determination of

“unavailability” of a witness for the purpose of establishing

admissibility of prior sworn testimony utilizing an abuse of

discretion standard. Burton v. Oldfield, 195 Va. 544, 550, 79

S.E.2d 660, 665 (1954).

III. Analysis

We have previously held that:

[P]reliminary hearing testimony of a
witness who is absent at a subsequent
criminal trial may be admitted into
evidence if the following conditions are
satisfied: (1) that the witness is
presently unavailable; (2) that the prior
testimony of the witness was given under
oath (or in a form of affirmation that is
legally sufficient); (3) that the prior
testimony was accurately recorded or that
the person who seeks to relate the
testimony of the unavailable witness can
state the subject matter of the
unavailable witness’s testimony with
clarity and in detail; and (4) that the

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 party against whom the prior testimony is
offered was present, and represented by
counsel, at the preliminary hearing and
was afforded the opportunity of cross-
examination when the witness testified at
the preliminary hearing.

Longshore v. Commonwealth, 260 Va. 3, 3-4, 530 S.E.2d 146, 146

(2000). The determination of the “unavailability” of a witness

is committed to the sound discretion of the trial court.

Burton, 195 Va. at 550, 79 S.E.2d at 665 (1954). Although the

focus of the inquiry is often directed to the absence of a

witness, the analysis also applies to circumstances when the

witness is present, but for sufficient reasons the witness’s

testimony is “unavailable.” In the case before us, Perkins

cited only fear as the basis of his refusal to testify, while

McClellan cited both fear and loss of memory. Our analysis is

confined to the adequacy of the trial court’s factual findings

and procedures to determine the unavailability of these two

witnesses.

In cases involving absent witnesses, we have required “that

a sufficient reason be shown why the original witness is not

produced; and that it is impossible, fairly speaking, for the

person offering the evidence to produce the living witness or to

take his deposition.” Wise Terminal Co. v. McCormick, 107 Va.

376, 379, 58 S.E. 584, 585 (1907). We have held that:

In order to establish a right to
introduce testimony of a witness given at

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 a former trial, it is incumbent upon the
proponent of such evidence to lay a proper
predicate for its introduction by showing
the unavailability of the witness who gave
the testimony sought to be produced. In
other words, the burden of satisfying the
court of the validity of the excuse for
nonproduction of witness lies upon the
party seeking to introduce the testimony
given by him at the former trial. It must
be shown either that the witness is dead,
insane, or beyond the jurisdiction of the
court or on diligent inquiry cannot be
found or that some other circumstance
exists which shows that the witness who
gave the testimony at the former trial
cannot be produced as witness on the
second trial.

Burton, 195 Va. at 549-50, 79 S.E.2d at 664. Use of such

language as “impossible, fairly speaking . . . to produce the

living witness,” and “diligent inquiry,” demonstrates a clear

preference for live testimony and cross-examination rather than

resorting to recitation of prior testimony.

The significance of the determination of “unavailability”

was emphasized in our recent opinion in Paden v. Commonwealth,

259 Va. 595, 529 S.E.2d 792 (2000). In Paden, a co-defendant

who was present in the courtroom was not called to the stand and

never asserted his Fifth Amendment right against self-

incrimination. The Commonwealth argued that the witness was

unavailable because he could not be compelled to give evidence

against himself. Id. at 596, 529 S.E.2d at 793. The co-

defendant’s statement was introduced under an exception to the

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hearsay rule as a statement against penal interest as recounted

by a police detective. Id. We held that the Commonwealth

failed to establish the unavailability of the witness and that

the trial court erred in admitting the detective’s testimony

because, “until [the witness] asserted those rights, he remained

available to testify.” Id. at 597, 529 S.E.2d at 793. The

witness’s refusal to testify had not been tested by appropriate

procedures available to provide sufficient proof of

unavailability of the testimony.

The narrow question before the Court in the present case is

whether the trial court abused its discretion in finding the

unavailability of both Perkins and McClellan and in admitting

prior testimony from the preliminary hearing. On this record,

we hold that the inquiry and procedures of the trial court

constituted an insufficient basis for determining unavailability

as a predicate to admission of prior testimony.

The proponent of hearsay testimony of an unavailable

witness must demonstrate a “sufficient reason” for not producing

the live testimony. Wise Terminal Co., 107 Va. at 379, 58 S.E.

at 585. Before concluding that testimony is unavailable, the

inquiry must include exploration of the subject matter of the

testimony that prompts the reluctance of the witness and the

reasons for refusal. Vague assertions of discomfort or

generalized statements of fear or concern cannot rise to the

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same level of significance as evidence of specific threats.

While it is the litigants’ responsibility to produce the

evidence, appropriate judicial pressure should be employed to

test the resolve of the witness. At a bare minimum, refusal to

testify should be met with an order from the trial court

directing the witness to testify. 1 Although use of contempt

powers is clearly subject to the discretion of the trial court,

a contempt order in response to continued refusal to testify

after being ordered to do so should be carefully considered. As

the United States Court of Appeals for the Second Circuit has

observed:

It is always possible that a recalcitrant
witness who does not respond to judicial
pressure will testify when ordered to do
so rather than face contempt proceedings
for refusal to obey the court’s order.
Once ordered to testify, a recalcitrant
witness who has been bent on helping a co-
defendant by not testifying may then point
to the court’s order as forcing him to do
so.

United States v. Oliver, 626 F.2d 254, 261 (2d Cir. 1980). We

are not unmindful of the realities of witness intimidation and

the potential necessity of utilizing prior testimony when a

witness refuses to testify. Nonetheless, the evidentiary

foundations for utilizing hearsay testimony demand that the

1
Federal Rule of Evidence 804 has similar requirements in
its treatment of “unavailability.”

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resolve of the witness be significantly tested before the

testimony is declared unavailable.

In the case before the Court, little if any judicial

pressure was employed to test the resolve of Perkins’ and

McClellan’s refusals to testify. Immediately upon Perkins

expressing reluctance to testify based upon fear, the trial

court assured him that the court was not going to require his

testimony. The trial court stated, “Mr. Perkins, I can

understand where you’re coming from. The Court is not going to

force you to testify . . . . I’m not going to force you.” Later

in the colloquy with the witness, the trial court stated, “as I

say, I cannot compel you to testify, as I told you previously,

and won’t.” Although there was reference by Perkins to “maybe

one or two verbal threats” that Perkins characterized as not

“official,” the court made no inquiry concerning the nature and

character of the threats, who made them, when they were made, or

if the threats were specifically related to the case before the

trial court. Any semblance of judicial pressure was completely

removed when the trial court assured Perkins that nothing would

happen to him as a result of his refusal to testify and that his

prior testimony would be utilized instead.

McClellan followed Perkins to the witness stand and quickly

informed the trial court that he did not want to testify because

he did not “feel comfortable testifying.” He further stated

14
that he did not feel safe and cited “hearing talk here and there

in the streets. . . . Like, ‘Don’t go to court,’ talk.” He

could not identify the nature and character of any threat, when

the alleged threats were made, or who made them. Additionally,

McClellan appeared to seek refuge in a claim of lack of memory

based upon his use of marijuana. When the trial court asked if

his memory could be refreshed, McClellan responded, “I really

don’t even want to speak about it.” McClellan even asked the

trial court, “Nothing can happen to me for refusing to testify?”

To which the trial court responded, “I’m not going to put you in

jail for refusing to testify, no.” As with Perkins, any

semblance of judicial pressure was completely removed when the

trial court assured McClellan that nothing would happen to him

as a result of his refusal to testify and that his prior

testimony would be utilized instead.

When lack of memory is legitimate and refreshing of memory

is not efficacious, judicial pressure to testify may result in

untrustworthy testimony. However, the bona fides of a claim of

loss of memory must be tested. The subject matter of lost

memory must be established because a witness may have

recollection of some matters and not of others. Lack of memory

relates to capacity to testify. Feigned lack of memory is

nothing more than refusal to testify which should be met with an

order of the trial court to testify and careful consideration of

15
utilization of contempt powers as a sanction against continued

refusal. Of course, the trial court is in a unique position to

evaluate the demeanor of the witness, and after proper inquiry,

the decision of the trial court is entitled to great deference.

Upon persistent refusal to testify despite judicial pressures

and an order to testify, or demonstrated bona fide lack of

memory, the testimony of a witness may be declared unavailable

and prior testimony may be admitted, provided that the

additional evidentiary foundations, not at issue in this case,

are met. 2

On this record, we hold that the trial court abused its

discretion in finding that the testimony of Perkins and

McClellan was unavailable and thereafter admitting evidence of

prior testimony from the preliminary hearing. Because we decide

this case based upon evidentiary requirements for admission of

hearsay under state law, it is unnecessary to address

Confrontation Clause issues under the Sixth Amendment to the

United States Constitution. We will reverse the judgment of the

Court of Appeals and vacate the judgment of conviction in the

trial court. The case will be remanded to the Court of Appeals

with directions to remand to the trial court for a new trial if

the Commonwealth be so advised.

2
We do not address in this opinion legitimate claims of
privilege, physical or mental illness, or any other proffered

16
 Reversed and remanded.

reasons for unavailability of testimony.

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