COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Hodges
Argued at Salem, Virginia
HUBERT NOWLIN
OPINION BY
v. Record No. 0961-02-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 15, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
Robert A. Williams (Williams, Luck &
Williams, on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Hubert Nowlin (appellant) appeals from his bench trial
conviction for possession of a firearm after having been convicted
of a felony in violation of Code § 18.2-308.2. On appeal, he
contends the trial court erred in admitting his wife's statement
into evidence against him, in violation of his Sixth Amendment
rights. Finding no error, we affirm.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
On May 5, 2000 appellant went to the City of Martinsville Police
Department and reported that his wife shot at him and tried to
kill him. Appellant spoke to Investigator Stuart Hayzlett, who
considered appellant "a victim." The police arrested appellant's
wife and questioned her about the shooting. Wife confessed to the
shooting and, when asked by the police, stated that she got the
gun from the marital home. "While [appellant] was making [his]
report" to the police about the shooting, he told Hayzlett "that
there were a number of firearms at the house, at his residence."
Hayzlett knew that appellant was a convicted felon, so he asked
appellant for permission to search the house for firearms.
Appellant and wife both gave written consent for the police to
search the marital residence for firearms.
Pursuant to these consents, Hayzlett, appellant and Officer
Patrick Agee went to the marital home. When they arrived,
appellant "took some keys out of his pocket and unlocked the front
door." Once inside, Hayzlett "asked [appellant] where the guns
were. [Appellant] stated that they were back in his bedroom."
(Emphasis added). Appellant then "led [the police] through the
house to a room on the back right of the house." The room had a
padlock on the door, and the bottom panel on the door had been
knocked out. Appellant "took a key and unlocked that padlock" to
allow Hayzlett and Agee access to the room. Again, Hayzlett asked
appellant where the guns were and appellant replied "in the
closet." Appellant then "walked to the closet, pulled back a
drape or curtain and said, 'Here they are.'" Hayzlett and Agee
found a total of 13 firearms in the house, including one that
appellant pointed out they had overlooked. Hayzlett and Agee also
found a large amount of ammunition in the trunk and driver's
console of appellant's car.
- 2 -
At trial appellant testified in his own defense and denied
that any of the 13 firearms the police found in the marital home
were his. He stated that he had been gathering up the ammunition
because his wife had threatened him and he wanted to "prevent
injury." Appellant also denied that the keys he used to unlock
the front door and the padlock on the bedroom door were his. The
Commonwealth called appellant's wife to rebut this testimony;
however, she invoked her spousal privilege, pursuant to Code
§ 19.2-271.2. At the Commonwealth's request, the trial court
declared wife unavailable. The Commonwealth then called Sergeant
Robert Fincher, who investigated the shooting, to testify about
the statement wife gave to police when she confessed to shooting
at appellant. Appellant objected to the statement of his wife as
hearsay. The trial court found that the statement was admissible
as an exception because it was "clearly against [wife's] penal
interest" when made and allowed Fincher to testify about wife's
statement. Fincher stated that when he asked wife where she got
the gun she used to shoot at appellant, she replied
I went into the bedroom. His bedroom door
was locked. He keeps his bedroom door
locked because we've got guns in there and I
don't want the children around. I knocked
the bottom out of the door and got all the
guns out and put them in the truck, every
one of them.
The trial court found appellant guilty on one count of
possession of a firearm after having been convicted of a felony.
At appellant's request, the trial court explained the basis of the
conviction as follows:
I felt that the fact that [appellant] . . .
had the keys [to the house and the] locked
- 3 -
bedroom . . . and he unlocked the door and
went in, and that [appellant] went
immediately and showed the officer exactly
where these weapons were. There was no
searching around the room for them, and
actually pointed out to the officer one
weapon that the officer had not seen in the
search . . . I thought it was pretty obvious
from the evidence that [appellant] was in,
if not possession, certainly joint control
of these weapons and that that's in
violation of the statute.
II. Analysis
Appellant contends it was error for the trial court to admit
into evidence wife's statement to the police because it was
hearsay and violated his Sixth Amendment right to confront the
witnesses against him. 1 We disagree.
"The Sixth Amendment's Confrontation Clause, made applicable
to the States through the Fourteenth Amendment, provides: 'In all
1
The Commonwealth argues appellant's assignment of error is
procedurally barred. We hold that appellant properly preserved
his assignment of error for appeal when he stated that admission
of the hearsay statement improperly interfered with his right to
cross-examine.
- 4 -
criminal prosecutions, the accused shall enjoy the right to be
confronted with the witnesses against him.'" Ohio v. Roberts, 448
U.S. 56, 62-63 (1980). "The right to confront witnesses secured
by the Sixth Amendment encompasses the right to cross-examine
them." Rankins v. Commonwealth, 31 Va. App. 352, 364, 523 S.E.2d
524, 530 (2000) (citing Cruz v. New York, 481 U.S. 186 (1987);
Douglas v. Alabama, 380 U.S. 415, 418 (1965)). "[W]hen deciding
whether the admission of a declarant's out-of-court statements
violates the Confrontation Clause, courts should independently
review whether the government's proffered guarantees of
trustworthiness satisfy the demands of the Clause." Lilly v.
Virginia, 527 U.S. 116, 137 (1999).
"The Confrontation Clause operates in two separate ways to
restrict the range of admissible hearsay. First, . . . the
prosecution must either produce, or demonstrate the unavailability
of, the declarant whose statement it wishes to use against the
defendant." Roberts, 448 U.S. at 65. Second, "the Clause
countenances only hearsay marked with such trustworthiness that
'there is no material departure from the reason of the general
rule [for excluding hearsay].'" Id.
In sum, when a hearsay declarant is not
present for cross-examination at trial, the
Confrontation Clause normally requires a
showing that he is unavailable. Even then,
his statement is admissible only if it bears
adequate "indicia of reliability."
Reliability can be inferred without more in
a case where the evidence falls within a
firmly rooted hearsay exception.
Id. at 66 (emphasis added). In the instant case, the onus was
therefore on the Commonwealth to show that: (1) wife was
- 5 -
unavailable and (2) her statement to the police fell within "a
firmly rooted exception to the hearsay rule."
A. Unavailability of Declarant
A declarant is unavailable when she cannot be compelled to
testify. See Jones v. Commonwealth, 22 Va. App. 46, 50-51, 467
S.E.2d 841, 843 (1996); Doan v. Commonwealth, 15 Va. App. 87, 100,
422 S.E.2d 398, 405 (1992). "[T]he 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.
At trial, the Commonwealth called wife as a rebuttal
witness. Wife took the stand and invoked her spousal immunity
privilege pursuant to Code § 19.2-271.2, which provides:
In criminal cases husband and wife shall be
allowed, and . . . may be compelled to
testify in behalf of each other, but neither
shall be compelled to be called as a witness
against the other, except (i) in the case of
a prosecution for an offense committed by
one against the other or against a minor
child of either, (ii) in any case where
either is charged with forgery of the name
of the other or uttering or attempting to
utter a writing bearing the allegedly forged
signature of the other or (iii) in any
proceeding relating to a violation of the
laws pertaining to criminal sexual assault
(§§ 18.2-61 through 18.2-67.10), crimes
against nature (§ 18.2-361) involving a
minor as a victim and provided the defendant
and the victim are not married to each
other, incest (§ 18.2-366), or abuse of
children (§§ 18.2-370 through 18.2-371).
Thus, pursuant to the statute, once wife invoked the marital
privilege, she could not be compelled to testify. She was,
- 6 -
therefore, unavailable for the purpose of admitting her hearsay
statement to the police.
B. Hearsay Exception
Under the second prong of the Confrontation Clause test,
the statement must fall within a firmly rooted hearsay
exception. "A statement that is against the penal interest of
the declarant at the time it is made is admissible as a
declaration against interest exception to the hearsay
prohibition." Lewis v. Commonwealth, 18 Va. App. 5, 8, 441
S.E.2d 47, 49 (1994). "It is settled in Virginia that a
declaration against penal interest is recognized as an exception
to the hearsay rule." Randolph v. Commonwealth, 24 Va. App.
345, 353, 482 S.E.2d 101, 105 (1997). "The admissibility of a
statement made by an unavailable witness that is against his or
her penal interest 'is a firmly rooted exception to the hearsay
rule in Virginia.'" Rankins, 31 Va. App. at 361-62, 523 S.E.2d
at 528 (citing Lilly v. Commonwealth, 255 Va. 558, 575, 499
S.E.2d 522, 534 (1998), rev'd on other grounds, 527 U.S. 116
(1999)).
"Determining whether a statement against penal interest is
reliable lies within the sound discretion of the trial court, to
be determined upon the facts and circumstances of each case."
Rankins, 31 Va. App. at 363, 523 S.E.2d at 529 (internal
quotations omitted). "The particularized guarantees of
trustworthiness required for admission under the Confrontation
- 7 -
Clause must be drawn from the totality of circumstances that
surround the making of the statement and that render the declarant
particularly worthy of belief." Id. at 369, 523 S.E.2d at 532
(internal citations and quotations omitted).
Under this exception, an out-of-court
statement is admissible to prove the truth
of the matters asserted therein if three
requirements are met: (1) the declarant is
unavailable to testify at trial; (2) the
statement is against the declarant's
interest at the time it was made; and (3)
the declarant is subjectively aware at the
time the statement is made that it is
against his or her interest to make it.
Id. at 362, 523 S.E.2d at 529.
The record proves that at the time wife gave the statement,
she was in police custody for shooting at appellant. She admitted
the shooting and, when asked, explained where she got the gun.
I went into the bedroom. His bedroom door
was locked. He keeps his bedroom door
locked because we've got guns in there and I
don't want the children around. I knocked
the bottom out of the door and got all the
guns out and put them in the truck, every
one of them.
Clearly admitting to the shooting and stating where she got the
gun was against wife's interest at the time she made the
statement. Finally, we must determine whether wife was
subjectively aware that her statement was against her interest.
Again, we note that wife made the statement while she was in
police custody, charged with shooting at appellant. Fincher
advised wife of her right to remain silent and that "what she said
might be used against her." Additionally, after she gave her
statement, Fincher charged wife with attempted murder, shooting
- 8 -
into an occupied vehicle and use of a firearm in the commission of
a felony. On the basis of the record before us, we conclude that
given the circumstances surrounding the statement, wife understood
her statement was against her penal interest.
Appellant's reliance on Cairns v. Commonwealth, 35 Va. App.
1, 542 S.E.2d 771 (2001), and Lilly, 527 U.S. 116, is misplaced.
Those cases dealt with the inherent unreliability of confessions
of codefendants and accomplices. While "a co-defendant's
confession inculpating the accused is inherently unreliable, and
. . . convictions supported by such evidence violate the
constitutional right of confrontation," Lee v. Illinois, 476 U.S.
530, 546 (1986), that is not the situation presented in the
instant case.
Wife was neither appellant's codefendant nor his accomplice.
Indeed, wife was charged with separate offenses that appellant
voluntarily reported to the police. Furthermore, nothing in
wife's statement implicates him in her criminal wrongdoing.
Rather, the statement recounts wife's actions in retrieving the
gun she used to shoot at appellant, the victim in her case, from
the bedroom. There was no attempt in wife's statement to "shift
or spread blame" to appellant for her criminal actions. Lilly,
527 U.S. at 137. The attempt to shift blame by codefendants or
accomplices is the primary concern addressed in the Supreme
Court's Confrontation Clause jurisprudence regarding statements
against interest. See, e.g., Lee, 476 U.S. at 541 ("Due to his
strong motivation to implicate the defendant and to exonerate
himself, a codefendant's statements about what the defendant said
- 9 -
or did are less credible than ordinary hearsay evidence."). That
concern is not implicated here.
The trial court found wife's statement to be "clearly
[against wife's penal interest] if she's charged with shooting at
him. She makes a statement about where she got the gun. I think
that's clearly against her penal interest. That's what
establishes reliability." Given the circumstances in which wife
gave the statement, we find the record supports the trial court's
finding that the statement was against wife's penal interest, that
2
it was reliable and was therefore admissible. Accordingly, we
affirm the judgment of the trial court.
Affirmed.
2
Furthermore, appellant's admissions to the police and his
actions at the house were sufficient to support the trial
court's finding that he was in knowing possession of the guns.
- 10 -