COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
ALVIN J. COOPER, S/K/A
ALVIN JERMAINE COOPER
OPINION BY
v. Record No. 0489-97-1 JUDGE RICHARD S. BRAY
FEBRUARY 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
Charles E. Haden (J. Robert Harris, III, on
brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Richard Cullen, Attorney General;
Kimberley A. Whittle, Assistant Attorney
General, on brief), for appellee.
Alvin J. Cooper (defendant) was convicted in a bench trial
for robbery and the related use of a firearm in violation of Code
§§ 18.2-53.1 and 18.2-58. On appeal, he complains that the trial
court erroneously admitted into evidence the written statement of
a codefendant and challenges the sufficiency of the evidence to
support the convictions. Finding no error, we affirm the
decision of the trial court.
In accordance with well established principles, we consider
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975).
At approximately 6:00 a.m. on April 27, 1996, Kentwan Boone,
Charles Scott, and defendant approached the victim as he prepared
to enter his truck. While standing within "two or three feet" of
the victim, one of the three pointed a firearm at him and
demanded money. The other two were positioned "[b]ehind the
truck a couple of feet," and "[o]ff to the right," approximately
"15 to 20" feet away. The victim recalled that the weapon
"looked like a handgun . . . [with] a copper metallic look" but
"[w]hether it was real or not, [he] could not tell." Fearful,
the victim emptied his pockets onto the ground. One assailant
grabbed the victim's keys, another removed the victim's
"portfolio" from his truck, and the perpetrators then fled in a
vehicle driven by defendant and owned by his father.
A nearby resident observed the robbery and alerted police.
Soon thereafter, Virginia State Trooper Stephen Harris stopped
the vehicle and ascertained that defendant was the driver, Boone
and Scott the passengers. The victim's checkbook and operator's
license were found on the front seat. Minutes later, another
officer brought the victim to the scene, and he identified the
three suspects as the robbers.
Both Boone and defendant provided investigators with written
statements. Boone admitted that the threesome were "planning to
rob someone" when they initially observed the victim. He
recalled that Scott wielded the weapon, a "real" gun, and that
defendant had discarded the victim's portfolio as he drove the
getaway vehicle from the crime scene. Defendant acknowledged
- 2 -
only "watching" the robbery, "kick[ing]" the victim's keys, and
driving his companions away. He denied involvement in planning
the offense, explaining that the men were en route "to meet a guy
named Kevin" when they observed the victim, "walking." He
claimed that Boone then "pulled out the water gun" and demanded
that the victim "stop looking at where they were going." When
police asked defendant why the victim was "chosen to be robbed,"
he responded that "[h]e was the only one out, watching us."
The Commonwealth subpoenaed Boone for trial on three
separate occasions, 1 always at the same address. The sheriff's
returns reported personal service on Boone in the first instance
on October 3, 1996, for trial October 21, 1996, and "posted"
service on October 30, 1996, for trial November 5, and, again, on
November 18, 1996, for the actual trial date, January 10, 1997.
Nevertheless, Boone failed to appear at trial and the
Commonwealth offered his statement to police as evidence against
defendant, relying upon Boone's unavailability to testify as an
exception to the hearsay rule. Overruling defendant's objection,
the court concluded that "looking at the totality of the
circumstances, . . . [Boone's] absence here today would lead me
to believe that he is unavailable, so I declare him to be a
witness that's unavailable," and Boone's confession was received
into evidence.
1
Trial was twice continued, but these delays are not in
issue.
- 3 -
The Third Party Statement
In Virginia, for a declaration against
penal interest to be admissible, it must meet
the following requirements: (1) the
declarant must be "unavailable to testify at
trial," (2) the statement must be against the
declarant's interest at the time it was made;
and (3) the declarant must be aware at the
time the statement is made that it is against
his or her interest to make it. While it is
settled . . . that a declaration against
penal interest is recognized as an exception
to the hearsay rule, "'such a declaration
made out of court by . . . [an] unavailable
witness is admissible only upon a showing
that the declaration is reliable.'"
Randolph v. Commonwealth, 24 Va. App. 345, 355, 482 S.E.2d 101,
105-06 (1997) (citations omitted). Defendant challenges only
Boone's unavailability to testify and the reliability of his
statement to police.
"[A] declarant is unavailable if the party seeking to
introduce the statement has been unable by diligent inquiry to
locate the declarant." McDonnough v. Commonwealth, 25 Va. App.
120, 127, 486 S.E.2d 570, 573 (1997) (citations omitted). "Due
diligence requires only a good faith, reasonable effort; it does
not require that every possibility, no matter how remote, be
exhausted." Id. at 129, 486 S.E.2d at 574 (citations omitted).
However, "at a minimum, . . . a party [must] attempt to subpoena
the witness or provide a reasonable explanation of why a subpoena
was not issued." Id. "'The party offering [the] hearsay
testimony has the burden of establishing the witness'
"unavailability." Determining whether the offering party has met
- 4 -
its burden and, thus, whether the declarant is "unavailable," is
left to the trial court's discretion,'" and "will be reversed on
appeal only if plainly wrong or without evidence to support it."
Id. at 127, 486 S.E.2d at 573; see also Wise Terminal Co. v.
McCormick, 107 Va. 376, 379, 58 S.E. 584, 585 (1907); Doan v.
Commonwealth, 15 Va. App. 87, 102, 422 S.E.2d 398, 406 (1992).
Here, the record clearly discloses the Commonwealth's
diligence in seeking to compel Boone's presence when the subject
indictments were scheduled for trial. Timely subpoenas, issued
only weeks apart to the same address, had resulted in both
personal and posted service on Boone. Nothing suggested that
Boone had relocated or was otherwise unaware of the subpoenas.
Under such circumstances, the court properly exercised sound
discretion in concluding that the Commonwealth had acted
responsibly to secure Boone's attendance at trial and thereby
2
established his unavailability.
Reliability
"'[W]hen one person accuses another of a crime under
circumstances in which the declarant stands to gain by
inculpating another, the accusation is presumptively suspect and
must be subjected to the scrutiny of cross-examination.'"
McDonnough, 25 Va. App. at 131, 486 S.E.2d at 575 (quoting Lee v.
2
On appeal, defendant contends the trial court found Boone
unavailable only because the Commonwealth anticipated an
invocation of his Fifth Amendment rights. However, this
assertion is unsupported by the record.
- 5 -
Illinois, 476 U.S. 530, 541 (1986)). "'But where proffered
hearsay has sufficient guarantees of reliability to come within a
firmly rooted exception to the hearsay rule, the Confrontation
Clause is satisfied.'" Id. (quoting White v. Illinois, 502 U.S.
346, 356 (1992)). Thus,
"'once it has been established that a
third-party confession has been made, the
crucial issue is whether the content of the
confession is trustworthy. And determination
of this issue turns upon whether . . . the
case is one where "there is anything
substantial other than the bare confession to
connect the declarant with the crime."'"
Randolph, 24 Va. App. at 356, 482 S.E.2d at 106 (quoting Morris
v. Commonwealth, 229 Va. 145, 147, 326 S.E.2d 693, 694 (1985)
(citation omitted)). "[T]he Virginia Supreme Court has made '"no
attempt . . . to delineate the quality or quantity of evidence
necessary to establish reliability; the question must be left to
the sound discretion of the trial court, to be determined upon
the facts and circumstances of each case."'" Id. (citations
omitted).
Here, Boone and defendant were among three men apprehended
in a vehicle driven by defendant, moments after an armed robbery
and in possession of property stolen during the offense. Within
minutes, all were identified by the victim. Boone confessed to a
detective shortly thereafter, naming defendant, Scott, and
himself as the perpetrators. Moreover, defendant subsequently
admitted complicity in a statement to the same investigator.
Thus, the reliability inherent in Boone's admissions against his
- 6 -
penal interest was substantially enhanced by other evidence
relating both Boone and defendant to the crimes, and the court
correctly found the statement sufficiently trustworthy. See
Randolph, 24 Va. App. at 356-57, 482 S.E.2d at 106.
Sufficiency of the Evidence
Boone's confession, together with the victim's
identifications, defendant's statements, and the circumstances of
his apprehension, provided ample evidence to support the robbery
conviction. With respect to the firearm offense, the victim
testified that the weapon "looked like a handgun . . . [with] a
copper metallic look," Boone described it as "real," and
defendant testified that he "assume[d]" Boone "would know what
kind of gun it was." Thus, viewed in the light most favorable to
the Commonwealth, the evidence provided ample support for both
convictions.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
- 7 -