COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Haley
Argued at Chesapeake, Virginia
MARIO LAMAR TURNER
OPINION BY
v. Record No. 1809-10-1 JUDGE ROBERT J. HUMPHREYS
JULY 26, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
C. Peter Tench, Judge
Charles E. Haden for appellant.
Virginia B. Theisen, Senior Assistant Attorney General
(Kenneth T. Cuccinelli, II, Attorney General, on brief), for
appellee.
Mario Lamar Turner (“Turner”) was convicted in a bench trial in the Circuit Court of the
City of Newport News (“circuit court”) of aggravated malicious wounding, in violation of Code
§ 18.2-51.2, and use of a firearm during the commission of a felony, in violation of Code
§ 18.2-53.1. Turner was sentenced to forty years in prison with thirty-three years suspended for
aggravated malicious wounding, and to three years in prison for use of a firearm. On appeal,
Turner contends that the trial court erred in permitting Assistant Public Defender Brian Keeley
(“Keeley”), Turner’s defense counsel at the preliminary hearing, to testify as a witness against
Turner at his trial. For the following reasons, we disagree and affirm.
I. BACKGROUND
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth.’”
Holloway v. Commonwealth, 57 Va. App. 658, 663, 705 S.E.2d 510, 512 (2011) (en banc)
(quoting Pryor v. Commonwealth, 48 Va. App. 1, 4, 628 S.E.2d 47, 48 (2006)). “‘Viewing the
record through this evidentiary prism requires us to discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to
the Commonwealth and all fair inferences to be drawn therefrom.’” Id. (quoting Cooper v.
Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009)). So viewed, the evidence is
as follows.
In 2009, Darnell D. Robinson (“Robinson”) was a high school student at Warwick High
School where he and his friends played football for the high school team. On the evening of
September 12, 2009, Robinson was standing in the area of 722 22nd Street in Newport News
with some friends discussing football when he was shot in his chest, arm, knee, and lower back.
Robinson testified at trial that prior to the shooting, Turner approached the group as they were
standing there, and spoke with Eric Poindexter (“Poindexter”), one of Robinson’s friends. Ellis
Butler, another friend of Robinson, testified that Turner then reached into his pocket, pulled out a
gun, and shot Robinson several times.
On September 12, 2009, Newport News Police Officer Calhoun responded to the report
of a shooting at approximately 9:17 in the evening in the area of 22nd Street and Marshall
Avenue in Newport News. He observed a crowd down the street in front of 722 22nd Street, and
proceeded down to that area. When he arrived, he found approximately ten people standing
around Robinson who was lying on the ground bleeding with puncture wounds to his chest and
underneath his right pectoral, and with blood on his knee. Robinson provided Officer Calhoun
with his name, and Officer Calhoun accompanied Robinson to the hospital where he collected
Robinson’s personal items. Dr. Trinity Pilkington treated Robinson for the gunshot wounds that
he suffered to his knee, clavical, forearm, and sacrum.
Around 11:00 p.m. on September 12, 2009, Newport News Police Officer William Soule
went to 1008 Fabus Drive in response to another call that shots had been fired. The location was
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approximately half-a-mile to a mile from where Robinson was shot, and was Turner’s
grandmother’s home. When he arrived, Officer Soule found an unidentified male hiding under a
tarp that covered a barbeque grill in the backyard. Officer Soule also found a cellular telephone
on the deck of the house that kept ringing. Upon finding the phone, Officer Soule discovered a
“trap door” in which he found a Ruger 9-millimeter pistol and an 1895 Russian revolver.
Neither weapon was loaded, but the revolver had an odor that indicated to Officer Soule that it
had been recently fired. Another officer arrived at the scene at 11:30 p.m., and collected several
shell casings from the street and lawn in front of 1006 Fabus Drive.
On the following morning, September 13, 2009, Newport News Police Officer Brown
recovered a bullet on the ground and a casing across the street from where Robinson had been
shot. Juliana Price, a forensic scientist, testified that the casing and bullet collected by Officer
Brown were fired from the 9-millimeter pistol found at Turner’s grandmother’s home.
At trial, Robinson testified that “Lamonte [Williams], Stan, ‘Beal,’ Josh [Butler],” and
some other individuals were present the night he was shot. Robinson recalled that Turner was
also present that night and spoke with Poindexter, but Turner was alone and probably there
fifteen to twenty minutes before the shooting took place. Robinson also stated that he did not
know Turner personally on the night of the shooting but that he knew of him. In addition,
Robinson stated that he did not see the person that shot him, nor did he remember seeing anyone
with a gun on that night.
Josh Butler (“Butler”), a fellow football player, testified that on the night Robinson was
shot, someone walked by the group and greeted them, but he could not remember what the
individual was wearing. Butler then acknowledged that he gave a statement to Newport News
Police Detective Best regarding the shooting and that it was recorded. Butler then reviewed the
transcript pages, but testified that his recollection was only “partially” refreshed. He testified
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that he still did not remember what the individual was wearing when he approached the group,
did not recall if he saw someone with a gun, and did not recall whether he saw Robinson being
shot. However, he testified that the individual did not do anything unusual after he approached
the group. The circuit court asked Butler if the transcript refreshed his memory with regard to
what he told the police detective. Butler replied that he remembered having the conversation
with the police detective, but the transcript only refreshed his memory as to the actual day the
event happened. The circuit court then asked, “Okay. So you don’t remember anything even
though you gave a full statement to the police officer?” Butler answered, “I remember hearing
the shots and I remember running.” The circuit court asked, “Okay. But nothing else in that
statement refreshes your memory?” Butler replied, “No, sir.”
Donnell Staton (“Staton”), another football player and friend of Robinson’s, testified that
he was with Robinson on the night of September 12, 2009, and that he did not see Robinson
being shot. The Commonwealth asked him if he recalled talking to Detective Best and giving
her a recorded statement about what happened that night, and Staton replied that he did. The
Commonwealth then asked him to read the transcript of the statement he gave, and if it refreshed
his memory of that night. Staton replied that it did, and testified that he never saw someone
shoot Robinson, but that he heard the shooting. He further testified that he saw another
individual in the area wearing a “White T, [and] a pair of jeans” walk up to the group and talk to
Poindexter. However, he did not know who the person was nor could he identify the person that
he saw. The circuit court then asked Staton if the transcript refreshed his memory. Staton
replied that it did, but he could not picture the person. Staton then testified that he saw “some
guy with the white t” with a gun, but he did not see the gun fired. He further stated that the
“white t” man was the same man that approached the group and had words with Poindexter.
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The Commonwealth then called Poindexter to the stand to testify. Poindexter testified
that he was with Robinson on the evening of September 12, 2009, and that he was on the same
football team. He testified they were sitting talking near 22nd Street, he heard some shots just as
they were about to leave, and they all ducked. He further stated that he did not see anyone with a
gun that evening and that all he specifically remembered was hearing shots and everyone
running. Poindexter identified Turner as his cousin, but stated he did not see Turner in the area
of 22nd Street that evening, nor did Poindexter remember if anyone approached him that night.
The Commonwealth established that Poindexter remembered testifying at the preliminary
hearing, and handed him a copy of the transcripts in order to refresh his memory. Poindexter
responded that after reading the transcript, he still did not remember talking to Detective Best
and giving her his statement. The Commonwealth then handed Poindexter a copy of the
transcribed statement he gave to Detective Best. Poindexter read it, and replied that he was
unable to recall what happened on that evening. Upon closer direct examination, Poindexter
testified as follows:
[Commonwealth] Well, after having read that statement and
your preliminary hearing transcript, do you
recall what happened that evening?
[Poindexter] No.
[Commonwealth] Let me get this straight, you have no
memory of what happened that evening?
[Poindexter] Yeah. We were standing on the corner and a
“fire” happened and we just ran.
[Commonwealth] Okay. But it’s your testimony that you no
longer remember whether or not you saw
someone shoot Mr. Robinson?
[Poindexter] Can you say it again?
[Commonwealth] Okay. You no longer remember whether or
not you saw someone shoot Mr. Robinson?
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[Poindexter] No.
[Commonwealth] Okay. You no longer remember whether or
not you saw a gun that evening?
[Poindexter] No.
[Commonwealth] Okay. You no longer remember whether or
not you saw anyone else in the area that
evening other than the football players?
[Poindexter] No.
[Commonwealth] Okay. And after reading that preliminary
hearing transcript and after reading the
statement that you gave to Detective Best
you still don’t remember what happened that
evening?
[Poindexter] No.
The Commonwealth then made a motion to admit the portion of the transcript of the
October 30, 2009 preliminary hearing testimony containing Poindexter’s testimony into
evidence. Defense counsel objected to the admission of the transcript on the grounds that 1) the
witness was not unavailable because he was present and testified, and the Commonwealth could
have attempted to impeach Poindexter with his prior inconsistent statements, and 2) the transcript
was not signed by the court reporter, and since he was not Turner’s counsel at the preliminary
hearing, he was not sure that what was transcribed was an accurate record of what was said at the
hearing. The Commonwealth responded that the Commonwealth was not allowed to impeach its
own witness, that the focus was on the unavailability of Poindexter’s testimony, and not on his
unavailability since he testified that he no longer remembered who shot Robinson, and that the
Commonwealth had attempted to get an original copy of the transcript, but was unable to do so.
The circuit court recessed in order for the Commonwealth to obtain an original copy of the
transcript, and held that Poindexter was unavailable “because of his present lack of
memory . . . .”
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However, the Commonwealth was unable to obtain a certified copy of the transcript that
satisfied Code § 19.2-165. 1 After another recess in order for the Commonwealth to locate the
court reporter, the Commonwealth was unable to bring the court reporter into the circuit court to
certify that the copy was a true and accurate representation of what she had transcribed. The
Commonwealth then requested that the circuit court delay ruling on the preliminary hearing
transcript because she stated, “I’ve got someone coming to court now who was at the preliminary
hearing I expect to be able to testify as to what was said at the preliminary hearing.” The circuit
court ruled that at that time it was not going to accept the transcript since the Commonwealth had
not obtained the required certification, and sustained Turner’s counsel’s objection to the entry of
the transcript into evidence.
Ellis Butler then testified that he was present at the scene of the shooting on September
12, 2009. Ellis Butler stated that he saw Turner reach into his pocket, and then he heard the
gunshots a short period later, after which everyone ran. He further testified that he saw Turner
with a gun, and saw him shoot Robinson.
The Commonwealth subsequently called Keeley to the stand to testify, and he testified
that he had previously represented Turner. Turner’s counsel objected to Keeley’s testimony on
the grounds that Keeley still had “a duty or an obligation” to Turner regarding “anything that
may have transpired and he would not be permitted to do anything that would be detrimental
possibly to [] Turner” since he was Turner’s prior counsel. The circuit court replied “Why
couldn’t he do that other than attorney/client privilege and any information conveyed to him
pursuant to attorney/client privilege I agree with that.” Turner’s counsel responded, “Yes, sir.”
The circuit court then added, “I agree he cannot divulge any information even though he no
1
“The transcript in any case certified by the reporter or other individual designated to
report and record the trial shall be deemed prima facie a correct statement of the evidence and
incidents of trial.” Code § 19.2-165.
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longer represents Mr. Turner based on attorney/client privilege. We don’t know what’s going to
be said so you have to object as the question is asked because I’m not sure.” The
Commonwealth replied that she did not intend “to ask anything involving privilege.” The circuit
court again reiterated that Keeley could not “divulge anything that’s of confidence or privileged
information between the attorney and client.”
Keeley then testified that he was present at the hearing and that the transcript of
Poindexter’s testimony was accurate to the best of his memory. Without looking at the
transcript, he stated that Poindexter said that “he saw [] Turner with a gun shooting somebody,”
but Keeley could not remember the victim’s name even though the victim had testified at the
preliminary hearing. Turner’s counsel then objected to the testimony on the grounds of hearsay
specifically stating, “To the extent that the Commonwealth is trying to use [] Keeley to say that it
was certain things said by a witness different at the preliminary hearing than what they said here
in the trial today. [] Ke[e]ley’s recitation of that, the statement that he made, would be hearsay.”
The circuit court agreed that it was hearsay, but overruled the objection as it found the
information was an exception to the hearsay rule based on prior testimony of an unavailable
witness. The circuit court, citing to several Virginia cases, set forth that the witness was
unavailable and had testified under oath, the issues were substantially the same, the party against
whom the hearsay was being offered was a party in the trial, and the witness that was testifying
as to what was said at the former trial was able to do so with reasonable accuracy.
Thereafter, Keeley testified that he recalled the victim testified at the preliminary hearing,
and the other witness who also testified at the preliminary hearing identified Turner as the
individual who shot the victim. Keeley then stated, after referring to the transcript, that the
second witness identified Turner by name and that Turner was the individual that shot Robinson.
Keeley also testified that the transcript was correct to the best of his recollection. On
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cross-examination, Keeley admitted that he did not have any notes with him that he used to
testify and that he was relying on the transcript. Keeley also admitted that he had probably tried
a couple hundred cases since the preliminary hearing, but that the transcript “sounds right.” He
stated further that he did not really remember the case and that his recollection of the case was
“fuzzy.”
On redirect, Keeley testified that he recalled having the preliminary hearing, that there
were two individuals who testified, and that the second witness testified that Turner was the one
who shot the other person. However, he stated that he was “fuzzy” about the names and faces of
the individuals, but that the transcript helped refresh his recollection that Poindexter was the
second witness. On recross, Keeley agreed that he did not have any independent recollection of
what Poindexter looked like, and he would not be able to pick him out of a lineup. The circuit
court then asked Keeley if he was present when Poindexter was sworn in and testified under
oath. Keeley responded that he was and that Poindexter had testified that his name was “Eric
Poindexter.”
The Commonwealth and Turner rested after Keeley’s testimony, and the circuit court
found Turner guilty of aggravated malicious wounding, and use or display of a firearm during
the commission of a felony. This appeal followed.
II. ANALYSIS
On appeal, Turner alleges that the circuit court erred in permitting Keeley, Turner’s
defense counsel at the preliminary hearing, to testify as a witness against Turner at his trial.
Specifically, Turner asserts that the circuit court erred in ruling that 1) Poindexter was
unavailable when he “merely testified at trial differently than the Commonwealth expected”;
2) Keeley owed no ongoing duty or obligation of loyalty to Turner “not to undermine his
interests by testifying as a prosecution witness at the trial of the former client”; 3) it was not
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hearsay for Keeley to testify as to what Poindexter said at the preliminary hearing 2 ; and 4) that
Keeley could testify about what Poindexter said at the preliminary hearing when Keeley had no
independent recollection of the specifics of Poindexter’s testimony and relied on the contents of
an inadmissible transcript of the preliminary hearing to refresh his memory. In addition, Turner
alleges that the error was not harmless because the trial court “evidently” relied on the unreliable
hearsay as substantive proof that Turner was the individual who shot Robinson.
A. Standard of Review
“Generally, the admissibility of evidence is within the discretion of the trial court and we
will not reject the decision of the trial court unless we find an abuse of discretion.” Midkiff v.
Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010) (citing Coe v. Commonwealth,
231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)). “Only when reasonable jurists could not differ can
we say an abuse of discretion has occurred.” Thomas v. Commonwealth, 44 Va. App. 741, 753,
607 S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).
In reviewing the unavailability of a witness, “‘[i]t is well settled that the sufficiency of
the proof to establish the unavailability of a witness is largely within the discretion of the trial
court, and, in the absence of a showing that such discretion has been abused, will not be
interfered with on appeal.’” Doan v. Commonwealth, 15 Va. App. 87, 102, 422 S.E.2d 398, 406
(1992) (quoting Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 665 (1954)). Thus, “‘[w]e
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.’”
Harris v. Commonwealth, 52 Va. App. 735, 747, 667 S.E.2d 809, 815 (2008) (quoting Sapp v.
Commonwealth, 263 Va. 415, 423, 559 S.E.2d 645, 649 (2002)). “‘The party offering the
2
The circuit court did not rule that the evidence was not hearsay. Rather, it ruled that the
evidence was hearsay, but that it fell within the exception for the prior testimony of an
unavailable witness.
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testimony bears the burden of establishing the witness’ unavailability.’” Id. at 747-48, 667
S.E.2d at 815 (quoting Bennett v. Commonwealth, 33 Va. App. 335, 347, 533 S.E.2d 22, 28
(2000) (en banc)).
B. “Unavailability” of the Witness
Turner contends that the circuit court erred in ruling Poindexter was unavailable when he
“merely testified at trial differently than the Commonwealth expected.”
“‘Testimony given at a former trial is admissible in evidence as an exception to the
hearsay rule if certain requirements are met . . . .’” Doan, 15 Va. App. at 100, 422 S.E.2d at 405
(quoting Charles E. Friend, The Law of Evidence in Virginia § 232 (3d ed. 1988)).
“Such testimony is not open to the objections ordinarily urged
against hearsay, because it has been delivered under the sanction of
an oath and subject to the right of the adverse party to
cross-examine the witness giving it. It is admitted on the principle
that it is the best of which the case admits.”
Id. at 100 n.7, 422 S.E.2d at 405 n.7 (quoting Burton, 195 Va. at 549, 79 S.E.2d at 664).
The Virginia Supreme Court has held the requirements for this exception are as follows:
“[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 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.”
Sapp, 263 Va. at 423, 559 S.E.2d at 649 (quoting Longshore v. Commonwealth, 260 Va. 3, 3-4,
530 S.E.2d 146, 146 (2000)).
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“[A] witness’ ‘unavailability’ is established if the court is satisfied that a ‘sufficient
reason is shown why the original witness is not produced.’” Jones v. Commonwealth, 22
Va. App. 46, 51, 467 S.E.2d 841, 844 (1996) (quoting Doan, 15 Va. App. at 100, 422 S.E.2d at
405). “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.’” Sapp, 263 Va. at 424, 559 S.E.2d at 649 (emphasis added).
“In [cases where the individual appears in court and testifies that he presently lacks memory and
thus is ‘unavailable,’] the focus of the inquiry is not the unavailability of the witness but the
unavailability of the testimony.” Jones, 22 Va. App. at 52, 467 S.E.2d at 844 (emphasis added)
(citations omitted).
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 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 . . . are met.
Sapp, 263 Va. at 427, 559 S.E.2d at 651.
The witnesses in Sapp both declined to testify once they were on the stand. The first
witness refused to testify on the ground that he was scared to testify because he had received
verbal threats even though he remembered what happened. Id. at 418-19, 559 S.E.2d at 647.
The second witness refused to testify on the basis that he did not feel safe, he forgot a lot of the
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things he testified to at the preliminary hearing even though he was telling the truth at the
hearing, and he did not want to testify even if the Commonwealth refreshed his memory. Id. at
420-21, 559 S.E.2d at 647-48. However, the Supreme Court of Virginia held that the trial court
did not exert any “appropriate judicial pressure” to test the resolve of the witnesses. Rather, the
trial court assured the witnesses that nothing would happen to them if they refused to testify and
that their prior testimony would be utilized instead. Id. at 426-27, 559 S.E.2d at 651.
In Jones, this Court addressed for the first time whether a witness’ lack of memory
renders him “unavailable,” and held that the trial court did not abuse its discretion “in finding
that [the witness’] memory loss at trial, whether real or feigned, rendered him unavailable.” 22
Va. App. at 52, 467 S.E.2d at 844. In that case, the witness had testified as an eyewitness to the
crime at the preliminary hearing. Id. at 49, 467 S.E.2d at 842. However, at trial, the witness
claimed that he did not remember the incident, that he did not remember speaking with the police
or testifying at the preliminary hearing, that he did not know the defendant, and further that he
had no memory of the events leading to the victim’s death. Id. at 49, 467 S.E.2d at 843. The
trial court found that the witness was unavailable because of his inability to remember his
preliminary hearing testimony, and it allowed his preliminary testimony to be read into the
record to impeach the witness and as substantive evidence of the defendant’s guilt. Id. at 49-50,
467 S.E.2d at 843. On appeal, this Court affirmed the trial court noting that despite the
Commonwealth’s repeated questions, its attempts to refresh the witness’ memory, and its grant
of immunity, the witness still refused to testify. Id. at 52, 467 S.E.2d at 844. This Court
specifically concluded, “although [the witness] appeared in court and testified to his present lack
of memory, he was ‘unavailable’ for purposes of the exception.” Id.
As was the case in Jones, the witness in the present case testified that he no longer
remembered facts that he had previously testified to despite efforts by the prosecutor to permit
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the witness to refresh his recollection. Poindexter testified that he was there on the night of
September 12, 2009, and he remembered hearing some shots and everyone ducking and running.
However, he also testified that he did not see anyone with a gun that evening, that no one else
came up to talk to him that evening, and that Turner was not in that area on that evening.
Poindexter then stated that he remembered talking to Detective Best and testifying at the
preliminary hearing under oath. However, after reading the transcripts from both the
conversation with Detective Best and the preliminary hearing, he stated that he did not remember
what happened that evening. Upon further questioning from the Commonwealth regarding his
specific memory of that evening, Poindexter testified that the only thing he remembered was
standing on the corner when he heard the shots and everyone running; but he stated that he did
not remember whether he saw someone shoot Robinson, whether he saw a gun that evening, or
whether anyone else was in the area that night in addition to the football players.
While Turner alleges that Poindexter was not unavailable but had merely testified
differently than the Commonwealth expected, the record does not support that assertion.
Poindexter did not give conflicting testimony. He testified that he could not remember when
asked about the specifics of information he had testified about in detail on an earlier occasion.
Thus, given the Commonwealth’s repeated questions that Poindexter had answered in detail on
an earlier occasion, its unsuccessful attempts to refresh his memory based on his prior testimony
given under oath at the preliminary hearing, and his continual response that he no longer
remembered various facts previously testified to, his testimony was “unavailable” for the
purpose of satisfying the requirements of Sapp. Thus, although Poindexter was present in court
and testified to the extent that he did remember, the circuit court did not abuse its discretion in
finding him “unavailable” with respect to that portion of his earlier testimony, which he could
not then recall.
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C. Admissibility of the Evidence
1. Duty or Obligation of Loyalty
Turner also contends that the trial court erred in ruling that Keeley owed no ongoing duty
or obligation of loyalty to Turner, his former client, not to undermine Turner’s interests by
testifying as a prosecution witness.
a. Waiver
The Commonwealth alleges that Turner waived this argument pursuant to Rule 5A:18.
The basis for the Commonwealth’s assertion is that Turner’s counsel did not clarify the objection
he made regarding Keeley’s duty of loyalty and that he did not clarify his objection when the
circuit court construed his objection to be focused primarily upon the attorney-client privilege.
Rule 5A:18 stated 3 : “No ruling of the trial court . . . will be considered as a basis for
reversal unless the objection was stated together with the grounds therefor at the time of the
ruling . . . .” “Not just any objection will do. It must be both specific and timely—so that the
trial judge would know the particular point being made in time to do something about it.”
Thomas, 44 Va. App. at 750, 607 S.E.2d at 742 (emphasis in original). “[T]he main purpose of
the rule is to ensure the trial court can ‘consider the issue intelligently and take any corrective
actions necessary to avoid unnecessary appeals, reversals and mistrials.’” Kovalaske v.
Commonwealth, 56 Va. App. 224, 230, 692 S.E.2d 641, 645 (2010) (quoting Martin v.
Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)).
3
Effective July 1, 2010, Rule 5A:18 was revised to state that, “[n]o ruling of the trial
court . . . will be considered as a basis for reversal unless an objection was stated with reasonable
certainty at the time of the ruling . . . .” Because the proceedings below were completed prior to
this revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect.
See Fails v. Va. State Bar, 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule
of Court in effect at the time of the proceedings below).
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In the present case, Turner’s counsel specifically objected to Keeley’s testimony at trial
as follows, “I think [Keeley] still would have a duty or an obligation to [] Turner as his prior
counsel with regards to anything that may have transpired and he would not be permitted to do
anything that would be detrimental possibly to [] Turner.” In response, the circuit court stated,
“Why couldn’t he do that other than attorney/client privilege and any information conveyed to
him pursuant to attorney/client privilege I agree with that.” Turner’s counsel then replied, “Yes,
sir.” In an attempt to be clear, the circuit court again stated, “I agree [Keeley] cannot divulge
any information even though he no longer represents Mr. Turner based on attorney/client
privilege. We don’t know what’s going to be said so you have to object as the question is asked
because I’m not sure.” The Commonwealth replied that she did not intend to ask anything
involving privilege. The circuit court again reiterated that “I agree with [Turner’s counsel] if
that’s the argument that you cannot divulge anything that’s of confidence or privileged
information between the attorney and client.”
The record establishes that Turner’s counsel objected to the admissibility of Keeley’s
testimony on the basis of the duty and obligation that Turner’s prior counsel owed him regarding
anything that transpired during his representation of Turner. Thus, Turner’s counsel’s objection
was specific and timely, and the issue is preserved for appellate consideration.
b. The Applicability of the Duty or Obligation of Loyalty
Turner cites to Rules 1.6 and 1.9 of the Virginia Rules of Professional Conduct in support
of his contention that the circuit court “erred in concluding that there was nothing improper
about a lawyer testifying as a prosecution witness against a former client.” 4
4
At trial, Turner’s counsel also objected on the basis of attorney/client privilege, and the
circuit court upheld his objection on that basis. In addition, Turner’s counsel conceded at oral
argument before this Court that the testimony at issue in this case did not involve information
falling within the attorney/client privilege, but was rather information obtained during the course
of representation. Thus, we do not address attorney/client privilege.
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Rule 1.6(a) provides in relevant part,
A lawyer shall not reveal information protected by the
attorney-client privilege under applicable law or other information
gained in the professional relationship that the client has requested
be held inviolate or the disclosure of which would be embarrassing
or would be likely to be detrimental to the client unless the client
consents after consultation, except for disclosures that are
impliedly authorized in order to carry out the representation, and
except as stated in paragraphs (b) and (c).
(Emphasis added). Comment 3 to Rule 1.6 further clarifies that,
The principle of confidentiality is given effect in two related
bodies of law, the attorney-client privilege (which includes the
work product doctrine) in the law of evidence and the rule of
confidentiality established in professional ethics. The
attorney-client privilege applies in judicial and other proceedings
in which a lawyer may be called as a witness or otherwise required
to produce evidence concerning a client. The rule of client-lawyer
confidentiality applies in situations other than those where
evidence is sought from the lawyer through compulsion of law.
The confidentiality rule applies not merely to matters
communicated in confidence by the client but also to all
information protected by the attorney-client privilege under
applicable law or other information gained in the professional
relationship that the client has requested be held inviolate or the
disclosure of which would be embarrassing or would be likely to
be detrimental to the client, whatever its source. A lawyer may not
disclose such information except as authorized or required by the
Rules of Professional Conduct or other law.
(Emphasis added). 5
5
The mere fact that Keeley testified regarding what occurred during his representation of
Turner in another forum does not mean it affected the duty or obligation of loyalty he owed to
Turner. As Comment 3 to Rule 1.6 notes, the attorney/client privilege applies “in judicial and
other proceedings in which a lawyer may be called as a witness or otherwise required to produce
evidence concerning a client,” whereas the rule of client-lawyer “confidentiality applies in
situations other than those where evidence is sought from the lawyer through compulsion of
law.” (Emphasis added). Moreover, the attorney/client privilege is an evidentiary privilege that
protects the relationship from invasion by the courts, and the client-lawyer confidentiality rule
regulates the conduct of the attorney admitted to, and regulated by, the bar and relates only to the
relationship itself. See Code § 8.01-420.7 (attorney/client privilege and work product
protection). As previously noted, Turner’s counsel does not argue, and in fact conceded at oral
argument, that the attorney/client privilege is not at issue in this case. Therefore, we address
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Rule 1.9(c) provides as follows:
(c) A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in a
matter shall not thereafter:
(1) use information relating to or gained in the course of the
representation to the disadvantage of the former client except as
Rule 1.6 or Rule 3.3 would permit or require with respect to a
client, or when the information has become generally known; or
(2) reveal information relating to the representation except as
Rule 1.6 or Rule 3.3 would permit or require with respect to a
client.
(Emphasis added). Comment 8 to Rule 1.9 states,
Information acquired by the lawyer in the course of representing a
client may not subsequently be used or revealed by the lawyer to
the disadvantage of the client. However, the fact that a lawyer has
once served a client does not preclude the lawyer from using
non-confidential information about that client when later
representing another client.
As the Commonwealth alleges, this issue has not been specifically addressed in Virginia.
Turner cites to three federal cases in support of his proposition that a lawyer violates his duty of
loyalty to a client “when counsel acts more for the benefit of, and with more apparent sympathy
toward, the prosecution than the client he is defending.” Fisher v. Gibson, 282 F.3d 1283, 1291
(10th Cir. 2002); see Osborn v. Shillinger, 861 F.2d 612 (10th Cir. 1988); Fullwood v. Lee, 290
F.3d 663 (4th Cir. 2002). However, Turner’s reliance on these federal habeas corpus opinions is
misplaced.
In Fisher, the Tenth Circuit Court of Appeals addressed a client’s Sixth Amendment right
to “effective assistance of counsel” that “also requires that an attorney adhere to his duty of
undivided loyalty to his client.” 282 F.3d at 1290-91 (citing Strickland v. Washington, 466 U.S.
668, 692 (1984)). Thus, the court analyzed the duty of loyalty within the context of effective
whether Keeley violated the duty or obligation of loyalty he owed to Turner when he testified at
trial.
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assistance of counsel and third-party conflicts of interest, and not in the context of a defendant’s
former counsel testifying allegedly to his detriment in violation of his duty of loyalty. In
Fullwood, the Fourth Circuit Court of Appeals also addressed a client’s Sixth Amendment right
to effective assistance of counsel, and stated, “an attorney whose loyalties are so conflicted that
he or she is no longer ‘functioning as the counsel guaranteed the defendant by the Sixth
Amendment’ renders ineffective assistance.” 290 F.3d at 689 (quoting Strickland, 466 U.S. at
687). Just as in Fisher, the court in Fullwood addressed the duty of loyalty within the context of
effective assistance of counsel and conflict of interest. Moreover, the Tenth Circuit Court of
Appeals in Osborn also addressed the duty of loyalty within the context of the Sixth Amendment
right to effective assistance of counsel through an adversarial proceeding. 861 F.2d at 625-29.
The Commonwealth cites to State v. Davis, 911 A.2d 753 (Conn. App. Ct. 2006), and
Ziebell v. State, 788 N.E.2d 902 (Ind. Ct. App. 2003), for support that the trial court did not err
in admitting Keeley’s testimony because it did not include confidential information or secrets,
nor did it involve matters of attorney/client privilege. While both Davis and Ziebell involved
objections on the basis of attorney/client privilege, the courts upheld the admissibility of the
testimony so long as the subject of the testimony was not confidential information.
In Davis, the defendant argued that the trial court erred in admitting the testimony of his
former attorney at trial in violation of the attorney/client privilege. 911 A.2d at 769. At trial, the
defendant’s former counsel testified that he had represented the defendant in a criminal matter in
2001 and that he had learned at a pretrial conference that the trial was scheduled to begin on
October 9, 2001, which information he conveyed to the defendant. Id. The Appellate Court of
Connecticut held that an attorney’s communication with his or her client regarding a trial date
was not privileged information falling within the scope of attorney/client privilege and that the
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circuit court did not abuse its discretion by admitting the defendant’s former defense attorney’s
testimony. Id. at 770. In reaching its holding, the court cited the following general rule:
“[c]ommunications between client and attorney are privileged
when made in confidence for the purpose of seeking legal advice.
. . . A communication from attorney to client solely regarding a
matter of fact would not ordinarily be privileged, unless it were
shown to be inextricably linked to the giving of legal advice.”
911 A.2d at 771 (emphasis and alterations in original) (citation omitted).
The Court of Appeals in Indiana reached a similar conclusion in Ziebell. The defendant
in that case alleged that the circuit court erred in permitting the defendant’s prior counsel to
testify regarding his identity during the habitual offender phase of the trial based on the
attorney/client privilege. 788 N.E.2d at 906-07, 912. However, the former attorney in Ziebell
only testified regarding the defendant’s identity for the purpose of establishing his prior
convictions. Id. at 912. Therefore, the court held that the former counsel did not reveal any
confidential communications or secrets, and thus the trial court did not abuse its discretion by
permitting the former counsel to testify. Id. at 912-13.
In this case, we find that the circuit court did not abuse its discretion by permitting
Keeley to testify regarding information that was not obtained confidentially from Turner.
Neither Rule 1.6 nor 1.9 prohibits a lawyer from testifying in court regarding what occurred at a
former public court proceeding when such testimony does not involve communications solely
between an attorney and his client and the testimony concerns information that has become
generally known. The Commonwealth only sought to elicit events and information conveyed by
Poindexter at a prior public court proceeding, and did not seek to have any information disclosed
that was privileged or uniquely related to Keeley’s representation of Turner. Specifically,
Keeley’s testimony in this case did not involve any confidential information or secrets that he
obtained “in the course of the representation” or “relating to the representation,” Rule 1.9, nor
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was it “gained in the professional relationship” or if disclosed “would be embarrassing or would
be likely to be detrimental to the client,” Rule 1.6. Rather, Keeley’s testimony was limited to
events he witnessed while he was Turner’s counsel that occurred at the preliminary hearing in
the general district court, which was open to the public, and entailed the prior testimony of a
sworn witness that was disclosed publicly to all those present at the preliminary hearing.
Thus, even assuming without deciding that a rule of professional conduct would operate
as a rule of evidence, once the information became generally known at a public hearing, Keeley
violated no rule of professional conduct when he testified regarding information previously
publicly relayed and generally known. In addition, the information did not involve matters that
Turner requested his counsel hold confidential or that could be held confidential since it was the
testimony of a witness, not Keeley’s client, given under oath at a prior public court proceeding.
For these reasons, we hold that the circuit court did not err in ruling that Keeley could testify
regarding Poindexter’s prior sworn testimony.
2. Hearsay
Turner further alleges that the circuit court erred in admitting Keeley’s hearsay testimony
into evidence when he had no independent recollection of Poindexter’s testimony and relied on
the unauthenticated transcript of his testimony. Specifically, Turner is alleging that Keeley’s
testimony is inadmissible hearsay as prior sworn testimony because it did not meet the third
requirement of the exception – “‘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 . . . .’” Sapp, 263 Va. at 423, 559 S.E.2d at 649 (quoting Longshore, 260 Va.
at 3-4, 530 S.E.2d at 146).
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a. Procedural Default
The Commonwealth alleges that Turner did not object to Keeley’s testimony on this
ground at trial, and thus he cannot rely on that basis for the first time on appeal. Rule 5A:18
provided at the time that, “No ruling of the trial court . . . will be considered as a basis for
reversal unless the objection was stated together with the grounds therefor at the time of the
ruling . . . .” “Not just any objection will do. It must be both specific and timely—so that the
trial judge would know the particular point being made in time to do something about it.”
Thomas, 44 Va. App. at 750, 607 S.E.2d at 742.
At trial, Turner’s counsel initially objected to Keeley’s testimony on the grounds that he
owed Turner a duty or obligation not to do anything that would be detrimental to Turner.
However, Turner’s counsel then specifically objected as follows: “I would only object to the
hearsay portion of [Keeley’s testimony] to the extent that it’s being offered for the truthfulness
that this is what these people said on those days.” The circuit court responded that it agreed that
the testimony was hearsay. Turner’s counsel then explained, “To the extent that the
Commonwealth is trying to use [] Keeley to say that it was certain things said by a witness
different at the preliminary hearing than what they said here in the trial today. [] Ke[e]ley’s
recitation of that, the statements that he made, would be hearsay.” The circuit court overruled
his objection finding that the testimony was an exception to the hearsay rule because it was prior
testimony of an unavailable witness. The circuit court specifically stated that the witness was
unavailable and had testified under oath in trial, the issues were substantially the same, the party
against whom the hearsay testimony is being offered was a party in the trial, and the witness
testifying regarding what was said at the former trial was able to do so with reasonable accuracy.
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Thus, the record establishes that Turner’s counsel objected on hearsay grounds to the
admissibility of Keeley’s testimony as to what Poindexter testified at the preliminary hearing,
and this issue is also preserved for appellate consideration.
b. The “Clarity and Detail” Requirement of Sapp
As noted above, the third requirement for the admissibility of hearsay as prior sworn
testimony requires, “‘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
. . . .’” Sapp, 263 Va. at 423, 559 S.E.2d at 649 (quoting Longshore, 260 Va. at 3-4, 530 S.E.2d
at 146).
In this case, the circuit court did not abuse its discretion in finding that Keeley was able
to testify with reasonable accuracy. Keeley testified that he recalled that two witnesses testified
at the preliminary hearing, the victim and the other witness who identified Turner as the
individual who shot the victim. After refreshing his recollection from the transcript, Keeley
stated that the second witness identified Turner by name and that Turner was the individual that
shot Robinson. Keeley also testified that the transcript was accurate to the best of his
recollection. On cross-examination, Keeley admitted that he did not have any notes with him
that he used to testify and that he was relying on the transcript to refresh his recollection. 6
Keeley also admitted that he had probably tried a couple hundred cases since the preliminary
hearing, but that the transcript “sounds right.” He stated further that he did not really remember
the case and that his recollection of this case was “fuzzy.”
6
In Virginia, counsel is permitted to “refresh [a] witness’s memory by allowing the
witness to examine material, usually writings, which relate to the incident in question.” Charles
E. Friend, The Law of Evidence in Virginia § 3-7, at 104 (6th ed. 2003). “Any material which
actually stimulates or revives the witness’s memory may be used. It is not limited to writings,
and may consist of anything which in fact stimulates memory. It makes no difference whether
the material was prepared by the witness or by some other person, and it may be an original, a
copy, or an extract.” Id. § 3-7(a), at 105.
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However, he testified on redirect that he recalled the preliminary hearing, that there were
two individuals who testified, and that the second witness testified that Turner was the one who
shot the other person. While he stated that he was “fuzzy” about the names and faces of the
individuals, he stated that the transcript helped refresh his recollection that Poindexter was the
second witness. On recross, Keeley agreed that he did not have any independent recollection of
what Poindexter looked like and that he would not be able to pick him out of a lineup. The
circuit court then asked Keeley if he was present when Poindexter was sworn in and testified
under oath. Keeley responded that he was and that Poindexter had testified that his name was
“Eric Poindexter.”
Thus, while he testified that he was “fuzzy” on the names and faces, Keeley had specific
recollection of those portions of Poindexter’s prior testimony that Poindexter could not recall
that he was able to convey with reasonable accuracy. Accordingly, the circuit court did not
abuse its discretion in finding that Keeley testified “with reasonable accuracy.”
D. Harmless Error
Lastly, Turner alleges that the contended errors were not harmless because the circuit
court “evidently relied on the unreliable hearsay as substantive proof that Turner actually shot
Robinson.” However, as we find the circuit court did not err, no harmless error analysis is
necessary.
Affirmed.
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