COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
AUDLEY C. McDONNOUGH
OPINION BY
v. Record No. 2947-95-2 JUDGE SAM W. COLEMAN III
JUNE 24, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Stephen T. Harper (Bradford F. Johnson;
Johnson & Walker, P.C., on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The defendant, Audley McDonnough, was convicted in a jury
trial of possessing cocaine and distributing cocaine. On appeal,
he contends the trial court erred by admitting into evidence the
hearsay statement of the person to whom he sold the drugs. The
court admitted the statement under the "declaration against
interest" exception to the hearsay rule. The defendant asserts
the Commonwealth failed to prove that the declarant was
unavailable to testify at trial or that the declarant's statement
was against his penal interest. The defendant also asserts that
admission of the statement violated his Sixth Amendment right of
confrontation.
The evidence fails to prove that the Commonwealth issued a
subpoena for the hearsay declarant, who was known to have
recently resided in Richmond. We hold, therefore, that the
evidence fails, as a matter of law, to support the trial court's
findings that the Commonwealth exercised due diligence in
attempting to obtain the declarant's presence at trial and that
the declarant was "unavailable." However, because the other
evidence of the defendant's guilt is overwhelming, we hold that
the error in admitting the declarant's hearsay statement was
harmless. Accordingly, we affirm the defendant's convictions. 1
On appeal we view 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). While Richmond City
Police Officer Schnupp was conducting surveillance in the 3400
block of East Marshall Street in Richmond, he observed the
defendant engaged in what appeared to be drug transactions from
the porch of a house. Between 8:00 and 9:00 p.m., Officer
Schnupp observed three or four individuals approach and speak
with the defendant on the porch. After some discussion with each
person, the defendant would place a plastic bag containing a
rock-like object on the porch. The individual would then pick up
the bag containing the rock-like object and place down cash which
the defendant would retrieve after the person left. After each
transaction, the defendant would go inside the house, a light
would come on briefly upstairs, and then the light would go off
1
Because the trial court erred by admitting the hearsay
statement, we need not decide whether the statement was against
the declarant's penal interest.
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before the defendant would reappear on the porch. Schnupp
described the defendant as a black male with dreadlocks wearing a
red University of Maryland sweatshirt, glasses, a stud earring in
his left ear and a dark hat. This description matched the
defendant's appearance when he was arrested later that evening.
Around 9:00 p.m., a dark-colored Renault stopped and a white
male, later identified as Robert Henshaw, exited the automobile
and went to the house. The defendant stepped down from the
porch, approached Henshaw, and handed him a plastic baggie in
exchange for money. As Henshaw drove away, Officer Schnupp
called for a "takedown" unit to apprehend Henshaw and for another
unit to arrest the defendant.
Henshaw was stopped in his car about ten seconds after
Officer Schnupp ordered the "takedown" call. There were three
other occupants in Henshaw's car. Henshaw consented to be
searched, and, as a result the officers found a glass pipe and a
plastic baggie containing a rock of cocaine in Henshaw's jacket
pocket. A search of the other occupants disclosed no drugs.
After Henshaw's arrest, he told the police that he had just
bought the cocaine from a black male, approximately twenty-three
years old, with dreadlocks, wearing a red sweatshirt, and that he
paid $25 for it. Henshaw told the police that he had purchased
cocaine from this person "about a hundred times." The police
officer transcribed Henshaw's statement and Henshaw signed it.
Several hours after Henshaw's arrest, the police executed a
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search warrant at the Marshall Street house where the defendant
had engaged in the transactions. In the bedroom where Officer
Schnupp had observed the light go on and off, the police officers
found a locked tackle box containing four bags of cocaine, a set
of digital scales, and a small black purse. They also found a
shoe and a pair of jeans containing cocaine and $214 in cash.
Corey Jones, the owner of the house, initially told police that
the drugs found in the house were his, however, at trial, he
testified that the cocaine in the tackle box belonged to the
defendant and that the defendant had given him cocaine to sell.
Jones said that the defendant had the key to the tackle box and
did not allow Jones to open it.
In a search of the defendant incident to his arrest, the
police found $621 in cash, a pager, and a wallet containing two
keys. One of the keys fit the lock on the tackle box found in
the bedroom of the house.
"DECLARATION AGAINST INTEREST" HEARSAY EXCEPTION
In order to fall under the "declaration against interest"
exception to the hearsay rule, the party offering the statement
must prove that the declarant is unavailable, that the statement
was against the declarant's interest at the time it was made, and
that the declarant was aware, at the time the statement was made,
that it was against his interest. Boney v. Commonwealth, 16 Va.
App. 638, 643, 432 S.E.2d 7, 10 (1993); 2 Charles E. Friend, The
Law of Evidence in Virginia, § 18-12 (4th ed. 1993). "The party
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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
v. Commonwealth, 22 Va. App. 46, 50, 467 S.E.2d 841, 843 (1996)
(citations omitted).
In Virginia, a declarant is unavailable if the party seeking
to introduce the statement has been unable by diligent inquiry to
locate the declarant. See Doan v. Commonwealth, 15 Va. App. 87,
101, 422 S.E.2d 398, 406 (1992); Friend, supra, § 18-9. Whether
a party has used due diligence is a factual question that will be
reversed on appeal only if it is plainly wrong or without
evidence to support it. See Wise Terminal Co. v. McCormick, 107
Va. 376, 379, 58 S.E. 584, 585 (1907); Doan, 15 Va. App. at 102,
422 S.E.2d at 406.
Here, in order to prove that Henshaw was unavailable, the
Commonwealth had the burden of showing that it exercised due
diligence in attempting to locate Henshaw in order to have him
testify at trial. The record does not indicate that the
Commonwealth had a subpoena issued for Henshaw. The Commonwealth
called two witnesses to prove that they had been diligent in
attempting to locate Henshaw and have him "available" at trial.
Officer Zohab testified that five "informants" had been searching
for Henshaw for one month before trial. Zohab also testified
that he had asked several officers who knew Henshaw to look for
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him. Additionally, Officer Zohab had information that Henshaw
had been staying in several hotels on Richmond's northside, so he
went to those hotels in an attempt to locate Henshaw, without
success. On cross-examination, Officer Zohab admitted that he
had not gone to Henshaw's last known address, but he testified
that he knew that address to be "bad." The officer also
acknowledged that he did not check with Henshaw's probation
officer, even though he knew that Henshaw had been in jail within
the last year for violating probation. Officer Zohab testified
that he did not know whether Henshaw was on probation at the time
he was trying to locate him for this case. Officer Zohab
acknowledged that he had seen Henshaw within the last "two or
three" months before trial.
Officer Hines testified that he went to Henshaw's last known
address approximately three weeks before trial and was told that
Henshaw no longer lived there. He also attempted to locate
Henshaw by driving around Henshaw's former neighborhood at night.
After the trial judge heard Officers Zohab's and Hines'
testimony, he ruled that the Commonwealth had exercised due
diligence in trying to locate Henshaw. Thus, he held that
Henshaw's hearsay statement describing the person from whom he
had purchased cocaine, which was essentially identical to Officer
Schnupp's description of the defendant, was admissible under the
"declaration against interest" exception to the hearsay rule.
Due diligence is that amount of prudence "as is properly to
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be expected from, and ordinarily exercised by, a reasonable and
prudent man under the particular circumstances." Black's Law
Dictionary 457 (6th ed. 1990). See also State v. Armstrong, 771
P.2d 889, 890 (Ariz. Ct. App. 1989) ("Although the question of
due diligence necessarily turns upon the details of each case,
the standard is constant: whether the state took reasonable
steps to locate the accused based upon all of the information
that it possessed."). Due diligence requires only a good faith,
reasonable effort; it does not require that every possibility, no
matter how remote, be exhausted. See, e.g., People v. Watkins,
530 N.W.2d 111, 113 (Mich. Ct. App. 1995); Commonwealth v.
Cottman, 476 A.2d 40, 42 (Pa. Super. Ct. 1984). Thus, although
the circumstances arguably may have required the police to
contact Henshaw's probation officer in their efforts to locate
him, that omission alone is not fatal to the determination that
the Commonwealth exercised due diligence.
We hold, however, that due diligence requires, at a minimum,
that a party attempt to subpoena the witness or provide a
reasonable explanation why a subpoena was not issued. When the
evidence proves that the issuance of a subpoena would be of no
avail because the witness is deceased, incompetent, or beyond the
reach of the court, then in those or similar circumstances the
party is not required to engage in a futile act. But, an effort
by a party, either the Commonwealth or a defendant, to locate a
witness or obtain a promise from a witness to appear without
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attempting to subpoena the witness cannot be considered due
diligence in the absence of an explanation of the reason that the
subpoena cannot be served. See State v. Terry, 359 So. 2d 172,
173 (La. 1978) ("Generally, the 'due diligence' requirement . . .
is not satisfied when defense counsel fails to have the potential
witness subpoenaed."); John W. Strong, 2 McCormick on Evidence
§ 253(a), at 134 (4th ed. 1992). We have applied a similar
requirement for establishing due diligence in order to obtain a
continuance due to the absence of a material witness. In
Cherricks v. Commonwealth, we said "[h]ad the witness in fact not
been subpoenaed, the appellant would be in no position to dispute
the denial of a continuance. Such a lack of [due] diligence on
his part would bar him from contesting the trial court's ruling."
11 Va. App. 96, 100, 396 S.E.2d 397, 400 (1990). See also
Shiflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 319-20
(1977) (holding that accused did not exercise due diligence in
obtaining witness for trial by issuing a subpoena two days before
trial). Here, we are very mindful of the fact that the
Commonwealth provided an explanation of extensive efforts by
"informants" and Officers Zohab and Hines to locate Henshaw.
However, their difficulty or inability in locating him does not
provide a reason or explanation as to why the issuance of a
subpoena would be futile. Furthermore, to the extent that
Henshaw might have been avoiding the officers who had arrested
him or the "informants" attempting to locate him in order not to
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be called as a witness, the issuance of a subpoena may have been
a more effective means of locating him. Moreover, an officer
charged with the duty of serving a subpoena may determine whether
a witness has a new address, can be located in another
jurisdiction, or is subject to process in another state or
country. Although an officer with a subpoena may have
accomplished no more than Officers Zohab and Hines, the issuance
of a subpoena assures an effort by law enforcement authorities in
the Commonwealth to secure the presence of witnesses.
Rule 3A:12(a) provides that a subpoena may be issued
ordering the attendance of witnesses in criminal cases. A
subpoena for a witness is a judicial order directed to law
enforcement officers to "summon the witness to appear at the time
and place specified in the subpoena for the purpose of giving
testimony . . . ." Rule 3A:12(a). Because a subpoena is a
court's order, it carries with it the force and command of the
state to find the witness and order the witness to appear; it
carries more force than a request from a police officer or the
Commonwealth's attorney or defense counsel for a witness to
appear in court on a date certain. Although the testimony of
Officers Zohab and Hines proved that considerable effort was made
to locate Henshaw, we hold that the evidence is insufficient as a
matter of law to prove that the Commonwealth made a good faith
reasonable effort in the absence of proof that a subpoena was
issued or a reasonable explanation as to why the issuance of a
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subpoena would have been futile. The issuance of a subpoena
alone, in the absence of other efforts to locate and secure the
attendance of a witness, will not establish due diligence, but
the issuance of a subpoena or proof as to why it would be a
futile act is necessary to prove that a party was diligent in
obtaining a witness' attendance. Accordingly, the trial court
erred in finding that the Commonwealth had used due diligence to
locate the witness and in ruling that the witness was
unavailable.
SIXTH AMENDMENT RIGHT OF CONFRONTATION
"[T]he Sixth Amendment's right of an accused to confront the
witnesses against him is . . . a fundamental right . . . made
obligatory on the States by the Fourteenth Amendment." Pointer
v. Texas, 380 U.S. 400, 403 (1965). "[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." Lee v. Illinois, 476 U.S. 530, 541 (1985).
"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." White v.
Illinois, 502 U.S. 346, 356-57 (1992); see also Raia v.
Commonwealth, 23 Va. App. 546, 549, 478 S.E.2d 328, 331 (1996).
"Where the [hearsay] exception does not require unavailability,
it is unlikely that the [Supreme] Court will hold that the
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Constitution requires it. Where the [hearsay] exception requires
unavailability, the [Confrontation] clause will also require such
a finding and will likely require a more rigorous demonstration
by the prosecution than by other parties." McCormick on
Evidence, supra, § 252, at 128.
Here, we will assume without deciding that the admission of
Henshaw's hearsay statement without sufficient proof of Henshaw's
unavailability violated the Confrontation Clause. See Barber v.
Page, 390 U.S. 719, 724-25 (1968) ("In short, a witness is not
'unavailable' for purpose of the ['prior testimony under oath']
exception to the confrontation requirement unless the
prosecutorial authorities have made a good faith effort to obtain
his presence at trial."). However, a violation of the
defendant's Sixth Amendment confrontation rights does not
"foreclose the possibility that this error was harmless when
assessed in the context of the entire case against [McDonnough]."
Lee, 476 U.S. at 547.
HARMLESS ERROR
Although the trial court erred by admitting Henshaw's
statement, we find the error to have been harmless. "A defendant
is entitled to a fair trial but not a perfect one." Lutwak v.
United States, 344 U.S. 604, 619 (1953). "Even though testimony
is objectionable as hearsay, its admission is harmless error when
the content of the extrajudicial declaration is clearly
established by other evidence." Schindel v. Commonwealth, 219
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Va. 814, 817, 252 S.E.2d 302, 304 (1979).
Furthermore, assuming that the admission of Henshaw's
statement violated the Confrontation Clause, the error was still
harmless. "Constitutional error . . . is harmless only when the
reviewing court is 'able to declare a belief that it was harmless
beyond a reasonable doubt.'" Lavinder v. Commonwealth, 12 Va.
App. 1003, 1005, 407 S.E.2d 910, 911 (1991). "[T]he appellate
court must determine on the basis of its own reading of the
record the probable impact of the evidence on the minds of the
jury and whether the admission was sufficiently prejudicial to
require reversal." Arnold v. Commonwealth, 4 Va. App. 275, 282,
356 S.E.2d 847, 851 (1987).
Henshaw's admission that he purchased cocaine and his
description of the defendant as the person from whom he purchased
the drugs proved that a sale of cocaine had, in fact, taken place
and effectively identified the defendant as the person who sold
him the cocaine. Although this hearsay evidence is prejudicial
in that it is direct evidence proving that a drug sale occurred,
the remaining evidence which proves that the defendant sold
Henshaw cocaine is overwhelming. Officer Schnupp, who was
watching the house, observed the defendant selling what appeared
to be a rock-like object to several individuals, including
Henshaw, on the night in question. Within ten seconds of having
observed a transaction between the defendant and Henshaw, Henshaw
was stopped and found to be in possession of a rock-like object
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that proved to be cocaine. The officer gave an accurate
description of the defendant on that night and identified the
defendant as the person he had seen make the sales. Moreover,
Corey Jones testified that the defendant had been selling cocaine
and was the owner of the cocaine found in the tackle box in the
house when the search warrant was executed. A key found on the
defendant fit the tackle box in which the police found cocaine
and other drug paraphernalia. Other sales by the defendant of a
similar nature in which Officer Schnupp had observed the
defendant exchange a rock-like substance for money had occurred
in the preceding hour. On these facts, no reasonable fact finder
could have found that a reasonable doubt existed as to whether
the defendant sold cocaine to Henshaw.
Due to the overwhelming evidence of the defendant's guilt,
we hold that the admission of Henshaw's statement in this case
constituted harmless error. Thus, we affirm the defendant's
convictions.
Affirmed.
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