COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia
DEQUAN SHAKEITH SAPP
OPINION BY
v. Record No. 0483-00-1 JUDGE G. STEVEN AGEE
MAY 22, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
(David B. Olson; Cope, Olson & Yoffy, P.L.C.,
on brief), for appellant. Appellant
submitting on brief.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The Circuit Court of the City of Newport News convicted
Dequan Shakeith Sapp (Sapp) in a bench trial of robbery, maiming
and two counts of using a firearm in the commission of those
felonies. He was sentenced to serve a total of eleven years for
these offenses.
Sapp contends on appeal the trial court erred when it
permitted the prior recorded preliminary hearing testimony of the
victim and an eyewitness to be admitted into evidence where both
witnesses were present at trial but refused to testify. Finding
no error by the trial court, we affirm the convictions.
Background
On Sunday, April 4, 1999, Sean McClellan (McClellan)
dropped Billy Perkins (Perkins) off near his home after a
shopping trip. As Perkins began walking toward his home, two
cars pulled up next to him. Sapp and four other men jumped out
of the vehicles and surrounded Perkins. Sapp asked Perkins,
"where's my brother's shit," which Perkins understood as a
reference to cocaine. When Perkins denied that he had any
cocaine, Sapp ran over to his car, pulled out a Tech 9 gun and
returned to Perkins. Pointing the gun at Perkins' face, Sapp
grabbed the gold chain hanging on Perkins' neck and pulled it
off. As Perkins backed up so that he was seated on one of the
cars, the group of men repeatedly punched him and rifled through
his pockets, stealing his pager. Perkins heard someone say,
"slit his wrist, slit his wrist." Perkins managed to get to his
feet and flee. He was later treated at a hospital where wounds
to his hand and lip were stitched.
McClellan witnessed the crimes from his vehicle.
On August 24, 1999, both Perkins and McClellan testified at
length in the preliminary hearing and were cross-examined
extensively by two defense counsel. Sapp changed counsel
between the preliminary hearing and trial.
At trial on December 21, 1999, both Perkins and McClellan
were sworn as witnesses but refused to testify, each telling the
trial judge he was afraid for his life. Perkins testified:
- 2 -
I'm too scared, you know, to say anything,
testify, for the simple fact I'd be
jeopardizing my life . . . . I know what
happened, but I'm too scared, you know, to
say . . . .
Similarly, McClellan testified:
I don't want to testify. I don't want to
testify . . . . I don't feel safe
testifying.
McClellan also testified that he "forgot a lot of stuff."
Perkins and McClellan both stated in open court that they
were refusing to testify. Upon examination by the
Commonwealth's attorney, both Perkins and McClellan affirmed
that they remembered their appearance at the preliminary hearing
and that the testimony given at the preliminary hearing had been
truthful. Neither could identify specific threats from Sapp or
persons acting for Sapp, but both had heard "talk on the street"
threatening their personal safety if they testified at trial.
The Commonwealth moved to have Perkins' and McClellan's
testimony from the preliminary hearing entered into the record,
on the basis that each witness "is declaring himself
unavailable." In its motion, the Commonwealth cited our
decision in Jones v. Commonwealth, 22 Va. App. 46, 467 S.E.2d
841 (1996), as recognizing a hearsay exception for prior
testimony of an unavailable witness. Sapp's trial counsel
timely objected to the introduction of the preliminary hearing
testimony and asked the trial court to use its contempt power to
compel Perkins and McClellan to testify.
- 3 -
The trial judge conducted a colloquy with each witness to
verify he knew the refusal to testify meant his prior testimony
would be read into the trial record. The trial judge opined
that he could not use the contempt power in this setting. The
judge, citing Jones, then denied Sapp's motion and admitted into
the record the preliminary hearing testimony of Perkins and
McClellan. Sapp was convicted and later sentenced.
Analysis
On appeal, Sapp alleges several grounds for his contention
that the trial court erred when admitting the prior testimony.
All of Sapp's arguments are tied to his constitutional right to
confront the witnesses against him. (U.S. Const. amend. VI; Va.
Const., art. I, § 8). Citing Longshore v. Commonwealth, 260 Va.
3, 530 S.E.2d 146 (2000), Sapp argues the case law requirements
for introducing prior testimony were not met.
In Longshore, the Supreme Court of Virginia reiterated the
general standards under which prior testimony of an unavailable
witness may be admitted at a later proceeding as an exception to
the rules of evidence regarding hearsay.
[T]he preliminary 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
- 4 -
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.
Id. at 3-4, 530 S.E.2d at 146-47 (citations omitted).
Essentially, Sapp alleges conditions one and four were not met
in this case. No error is alleged as to the second and third
requirements.
As to the "unavailability" of the witnesses, Sapp argues
his case is distinguishable from our ruling in Jones because the
reluctant witness there was "unavailable" due to real or feigned
memory loss. Because Perkins and McClellan claimed fear, not
memory loss, as their reason not to testify, Sapp argues Jones
should not apply. Sapp also avers that the witnesses could have
been made "available" had the trial court threatened them with
contempt, which the court refused to do.
As to the last condition in Longshore, Sapp argues that
because trial counsel, as opposed to his counsel at the
preliminary hearing, could not cross-examine Perkins and
McClellan, he was denied his constitutional right to confront
the witnesses against him.
I. The Unavailable Witness
Both the United States Supreme Court and the Supreme Court
of Virginia have long recognized the admissibility in a criminal
- 5 -
trial of prior recorded testimony of an unavailable witness
under certain circumstances. Mattox v. United States, 156 U.S.
237 (1985); Fisher v. Commonwealth, 217 Va. 808, 232 S.E.2d 798
(1977). The preliminary condition which must be met is that the
declarant, whose former testimony is to be admitted into
evidence as a hearsay exception, must be "unavailable." Doan v.
Commonwealth, 15 Va. App. 87, 100, 422 S.E.2d 398, 405 (1992).
"The party offering the hearsay testimony has the burden of
establishing the witness' 'unavailability.' Determining whether
the offering party has met its burden and, thus, whether the
declarant is 'unavailable,' is left to the trial court's
discretion." Jones, 22 Va. App. at 50, 467 S.E.2d at 843.
While we have recognized a number of factors which may
satisfy the foundational requirement of "unavailability" of a
witness (i.e., the witness dies), it is clear there is no
exclusive list. Id. at 50-51, 467 S.E.2d at 843; see also
Charles E. Friend, The Law of Evidence in Virginia § 18-9 (4th
ed. 1993). To the contrary, the Supreme Court of Virginia's
long-standing rule is "that a sufficient reason is shown why the
original witness is not produced." Wise Terminal Co. v.
McCormick, 107 Va. 376, 379, 58 S.E. 584, 585 (1907); accord
Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 664 (1954).
Based on this precedent, we held in Jones that the prior
testimony of Brown was admissible because Brown's testimony was
unavailable even though he was present in court.
- 6 -
[T]he trial court did not abuse its
discretion in finding that Brown's memory
loss at trial, whether real or feigned,
rendered him unavailable. Brown's testimony
at trial was not forthcoming, despite the
Commonwealth's repeated questions, its
attempt to refresh his memory, and its grant
of immunity. Brown admitted that he simply
did not want to testify and ultimately could
not be compelled to "remember." Thus,
although Brown appeared in court and
testified to his present lack of memory, he
was "unavailable" for purposes of the
exception. In such cases, the focus of the
inquiry is not the unavailability of the
witness but the unavailability of the
testimony.
22 Va. App. at 52, 467 S.E.2d at 844 (emphasis added).
We see 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.
Contrary to Sapp's contention that Jones only refers to
witnesses with failed memory, the reluctant witness there
"simply did not want to testify." Id. Perkins' and McClellan's
refusals here are not mere recalcitrance, but were based on a
real fear of retribution or retaliation if they testified. The
testimony of Perkins and McClellan was uncontradicted as to the
fear for their safety should they testify at trial.
- 7 -
The trier of fact was uniquely and appropriately situated
to observe the demeanor of both witnesses and ascertain whether
or not their testimony of fear-induced silence was real or
feigned. Witness credibility, the weight accorded the testimony
and the inferences to be drawn from proven facts are matters to
be determined by the fact finder, and the trial court's judgment
will not be disturbed on appeal unless it is plainly wrong or
without evidence to support it. See Code § 8.01-680; see also
Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476
(1989).
An exception to the hearsay rule on unavailability of the
declarant due to the witness' refusal to testify based on fear
appears to be a question of first impression in Virginia. Other
states and the federal courts have dealt with such a refusal to
testify, have found the fearful witness "practically
unavailable," and have ruled that the witness' prior testimony
was admissible as a valid hearsay exception and not violative of
the Confrontation Clause.
In Geraci v. Senkowski, 211 F.3d 6 (2d Cir. 2000), the
United States Court of Appeals for the Second Circuit, applying
New York state law in a habeas corpus proceeding, ruled that
where a witness refuses to testify out of fear, and the
prosecutor demonstrates that the witness has been threatened,
the witness is "practically unavailable" for purposes of the
hearsay exception for prior testimony. Id. at 9-10.
- 8 -
In Geraci, an eyewitness to a stabbing testified before a
state grand jury that he saw the defendant stab the victim. It
was later discovered that the grand jury minutes were missing,
and, just prior to trial, the witness quit his well-paying job
without notice and fled from his home. When he subsequently was
located in Florida, the witness stated that he had been
approached by a person who showed him the grand jury minutes
describing his testimony and that both he and his family were
threatened. In addition, he had been offered and received
substantial sums of money for staying away from New York until
after the trial. None of these events, though, could be
personally connected to Geraci, the defendant.
Prior to testifying at trial, the witness indicated to
prosecutors that he would change the story he had given under
oath before the grand jury. The witness followed through with
his plan and testified that he had not seen the stabbing. He
explained the discrepancy between this testimony and his
testimony before the grand jury on the ground that when he first
testified he was unsure of the facts because the club had been
dark and he had been drinking.
The state trial court determined that the witness was
"markedly evasive" in this testimony. The trial court also
found that the prosecution had demonstrated by clear and
convincing evidence that someone acting on Geraci's behalf
- 9 -
threatened the witness and that if required to testify, the
witness would do so falsely. As a result, the trial court found
the witness "practically unavailable" and permitted the use of
his grand jury testimony in the prosecution's case. Geraci was
convicted, and the appellate courts of New York affirmed. The
Second Circuit held, "'a witness who is so fearful that he will
not testify' or will testify falsely, 'is just as unavailable as
a witness who is dead or cannot be found.'" Id. at 9 (citations
omitted).
We find no merit in Sapp's claim that the trial court erred
by not using the contempt power to compel Perkins and McClellan
to testify. As at trial, Sapp cites no authority for this
argument. The use of the court's contempt power is
discretionary, not mandatory, and cannot be applied in all
situations. Code § 18.2-456; see also Higginbotham v.
Commonwealth, 206 Va. 291, 142 S.E.2d 746 (1965). The record
does not reflect the trial judge acted improperly or abused his
discretion in this regard. To the contrary, the trial judge
pointed out to each witness that his preliminary hearing
testimony would be used against Sapp if the witness continued to
refuse to testify. Thus, the trial judge clearly informed each
witness he could not escape the use of his testimony.
We conclude the first condition of Longshore was satisfied.
The witnesses, Perkins and McClellan, were unavailable because
- 10 -
they refused to testify based on uncontradicted evidence of
their fear for their personal safety.
II. Opportunity of Cross-Examination
Sapp argues that the last prong of Longshore was violated
in this case because his trial attorney did not cross-examine
Perkins and McClellan at the preliminary hearing. Accordingly,
Sapp avers his Confrontation Clause right was thwarted. We
disagree.
Longshore and prior case law are manifestly clear that it
is the "opportunity of cross-examination" which must be
available at the prior proceeding. Longshore, 260 Va. at 4, 530
S.E.2d at 147 (citations omitted). There is no support for
Sapp's argument that this "opportunity" is provided only if
trial counsel is the person afforded that opportunity.
The record plainly reflects Perkins and McClellan were
subject to extensive cross-examination at the preliminary
hearing by two attorneys. Between the preliminary hearing and
trial, Sapp changed counsel. Without question, Sapp received
and exercised the opportunity of cross-examination. We find no
merit to his contention that such opportunity should apply only
to his last counsel of record.
For the foregoing reasons, we hold Sapp's Confrontation
Clause rights were met. The witnesses' preliminary hearing
testimony was properly admitted at trial because they were
effectively unavailable and Sapp had been adequately afforded
- 11 -
the opportunity of cross-examination at the prior proceeding.
Accordingly, all of Sapp's convictions are affirmed.
Affirmed.
- 12 -
Benton, J., dissenting.
The Sixth Amendment provides, in part, that "[i]n all
criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him." The United
States Supreme Court has held that this right of confrontation
is fundamental and is made obligatory on the States through the
Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403
(1965). While the Confrontation Clause and the hearsay rules
have similar aims, their prohibitions are not equivalent. Idaho
v. Wright, 497 U.S. 810, 814. "The Confrontation Clause . . .
bars the admission of some evidence that would otherwise be
admissible under an exception to the hearsay rule." Id. In
order to satisfy the Confrontation Clause, the prosecution must
establish that use of the prior testimony is necessary because
the declarant is unavailable and the evidence bears adequate
"indicia of reliability," such as where it falls within a firmly
rooted hearsay exception. Id. at 814-15.
The rule is well established in Virginia concerning the
admission of such evidence as an exception to the hearsay rule.
As a prerequisite to the admission into evidence of testimony
given at a former hearing, the record must establish the
"unavailability" of the witness. Burton v. Oldfield, 195 Va.
544, 549-50, 79 S.E.2d 660, 664 (1954).
In this case, the Commonwealth failed to satisfy the
"unavailability" requirement necessary to conform to the
- 13 -
strictures of both the Confrontation Clause and the hearsay
rule. The record clearly establishes that Sean McClellan and
Billy Perkins were present in the courtroom and testified under
oath. In no sense can we say either was "an absent witness,"
which was the circumstance existing in Longshore v.
Commonwealth, 260 Va. 3, 3, 530 S.E.2d 146, 146 (2000).
In addition, the testimony of each witness establishes that
he was not "unavailable." As we noted in Jones v. Commonwealth,
22 Va. App. 46, 467 S.E.2d 841 (1996), Virginia precedent has
established a partial list of reasons why a declarant may be
"unavailable," including death, illness and the opposing party's
causing the declarant's absence. 22 Va. App. at 50-51, 467
S.E.2d at 843. In Jones, we expressly decided as an issue of
first impression in Virginia "[w]hether a witness' lack of
memory renders the witness 'unavailable.'" Id. at 50, 467
S.E.2d at 843 (emphasis added). The record in that case
established the following:
At Jones' trial, the Commonwealth called
both Johnson and Brown as witnesses. Both
men testified that they did not remember
either the incident or having spoken with
the police. Brown further claimed that he
did not know Jones and that he had no memory
of the events leading to Watson's death. In
response to the Commonwealth's questions,
Brown asserted his Fifth Amendment right
against self-incrimination. The
Commonwealth then granted immunity to Brown,
but Brown claimed that he did not want to
testify. Brown continued to maintain that
he could not remember the crime. He also
maintained that he could not remember his
- 14 -
statement to the police, or testimony at the
preliminary hearing.
Id. at 49, 467 S.E.2d at 843. Under these circumstances, the
trial judge "concluded that Brown's inability to remember his
preliminary hearing testimony rendered him an 'unavailable'
witness." Id. at 49-50, 467 S.E.2d at 843. We affirmed the
trial judge's decision to allow the use of the witness' prior
testimony, and we held that "although [the witness] appeared in
court and testified to his present lack of memory, he was
'unavailable.'" Id. at 52, 467 S.E.2d at 844. We did not hold
that mere unwillingness to testify was sufficient to make a
witness "unavailable."
Citing Geraci v. Senkowski, 211 F.3d 6, 8 (2d Cir. 2000),
the Commonwealth argues that general fear of testifying makes a
witness unavailable. In Geraci, however, the record established
the following:
The trial court determined that Terranova
had been "markedly evasive" in his testimony
at the hearing. The trial court also found
that the prosecution had demonstrated by
clear and convincing evidence that Terranova
had been threatened by [the accused] or
someone acting on [the accused's] behalf,
and that if required to testify, he would do
so falsely. As a result, the trial court
found Terranova "practically unavailable"
and permitted the use of his grand jury
testimony in the prosecution's case.
Id. at 8.
Upon these findings, the court in Geraci held that the
witness "was 'practically unavailable' because of threats
- 15 -
against him and his family made on behalf of [the accused]."
Id. at 9. In other words, Geraci merely restates the well
established, unremarkable proposition that "[an accused] who
procures a witness's absence waives the right of confrontation
for all purposes with regard to that witness, not just to the
admission of sworn hearsay statements." United States v.
Aguiar, 975 F.2d 45, 47 (2d Cir. 1992).
I believe that we eviscerate the Confrontation Clause and
the hearsay rule by expanding the meaning of "unavailability" to
include a generalized fear of harm. This unprecedented
expansion unreasonably curtails an accused's right to confront
the witnesses against him or her any time a witness simply
refuses to testify without identifying a specific, credible
threat. The majority's position imposes a limitation that
hinders the accused's right of confrontation and the
fact finder's ability to determine the truth of a matter. 1
Furthermore, the Commonwealth has not borne its burden of
proving that Sapp caused or contributed to the reluctance of
these witnesses to testify. No evidence in this case tends to
prove that Sapp or anyone acting on his behalf threatened or
1
The position taken by the majority and the trial judge is
further undermined by the fact that the witnesses' preliminary
hearing testimony was admitted despite the witnesses' fear that
they would be harmed if they testified. In effect, these
witnesses were allowed to control the presentation of their
testimony. Rather than acquiesce to these conditions, the trial
judge should have explored every avenue that might have led them
to testify, including use of the contempt power.
- 16 -
intimidated these witnesses. The evidence proves only that
McClellan and Perkins were reluctant to testify and expressed
only a general fear because of "hearing talk here and there in
the streets." This evidence was not sufficient to prove the
witnesses were unavailable and would not have testified under
proper circumstances and safeguards.
I would hold that the mere unwillingness of a witness to
testify because of a generalized fear is insufficient to make
the witness "unavailable." Accordingly, I would hold that the
trial judge erred by admitting into evidence at trial, as an
exception to the hearsay rule and the commands of the
Confrontation Clause, the witnesses' prior testimony given at a
preliminary hearing.
I dissent.
- 17 -