Longshore v. Commonwealth

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court
building in the City of Richmond on Friday, the 9th day of June,
2000.

Clifton S. Longshore, Jr., Appellant,

against Record No. 992269
Court of Appeals No. 1007-98-1

Commonwealth of Virginia, Appellee.

Upon an appeal from a judgment rendered by the Court of
Appeals of Virginia on the 13th day of July, 1999.

Upon consideration of the record, briefs, and argument of

counsel, the Court is of opinion that there is no error in the

judgment of the Court of Appeals.

The circuit court permitted the Commonwealth to introduce the

testimony of an absent witness into evidence by reading that

witness's prior testimony as contained in a transcript of the

preliminary hearing on this felony charge. At that preliminary

hearing, the defendant called the witness and questioned him about

the robbery that occurred in the "bullpen" of a jail and the fact

that the witness did not report what he observed to any jail

personnel at that time. Although the Commonwealth issued a summons

for the absent witness to appear at the trial in the circuit court,

the witness could not be located and was never served with the

summons.

The defendant objected to the introduction of the absent
witness's testimony and now claims that the requirements for

admitting prior testimony of an unavailable witness were not

satisfied and that the use of the absent witness's testimony at the

defendant’s trial in circuit court violated the defendant’s

constitutional right to confront the witnesses against him.

We have previously held that the 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 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.
Shifflett v. Commonwealth, 218 Va. 25, 28, 235 S.E.2d 316, 318

(1977). See also Fisher v. Commonwealth, 217 Va. 808, 812-13, 232

S.E.2d 798, 801-02 (1977).

In the present case, all these requirements were fulfilled.

Specifically with regard to the defendant's opportunity to cross-

examine the witness at the preliminary hearing, the record shows

that, even though the defendant, rather than the Commonwealth,
called the witness, the court did not limit the defendant's

questioning of the witness nor did the Commonwealth object to any

question. Furthermore, since the defendant called the witness, his

questions were not limited by the scope of the Commonwealth's direct

examination. In other words, the defendant tested the witness's

testimony to the full extent that he chose to do and he had more

than a mere opportunity to conduct the equivalent of cross-

examination. See Ohio v. Roberts, 448 U.S. 56, 71 (1980). Thus, we

find no error, constitutional or otherwise, in permitting the use of

the absent witness's prior testimony at the trial of this felony

charge.

It is ordered that the Circuit Court of the City of Chesapeake

allow counsel for the appellant a fee of $725 for services rendered

the appellant on this appeal, in addition to counsel's costs and

necessary direct out-of-pocket expenses.

The Commonwealth shall recover of the appellant the amount paid

court-appointed counsel to represent him in this proceeding,

counsel's costs and necessary direct out-of-pocket expenses, and the

costs in this Court and in the courts below.

_______________

SENIOR JUSTICE WHITING, with whom JUSTICE HASSELL joins, dissenting.

I am unable to agree with the majority for the following

reasons. I do not think that the defendant "was afforded the

opportunity of cross-examination when the witness testified at the
preliminary hearing," as held by the majority. In my opinion,

simply because "the court did not limit the defendant's questioning

of the witness nor did the Commonwealth object to any question,"

does not mean that the defendant either had or exercised the right

of cross-examination at the preliminary hearing.

Nor do I agree that "the defendant tested the witness's

testimony to the full extent that he chose to do and he had more

than a mere opportunity to conduct the equivalent of cross-

examination," as the majority concludes. The record indicates that

the defendant asked a limited number of innocuous leading questions

of the witness during his direct examination regarding the witness's

recollection of what he had observed during the encounter in the

"bullpen" and his failure to promptly report the alleged robbery.

Moreover, the record does not indicate that the defendant sought to

(1) establish ulterior personal reasons of the witness for unfairly

casting blame on the defendant or challenging the witness's veracity

as in Ohio v. Roberts, 448 U.S. 56, 71 (1980), (2) impeach the
witness in the preliminary hearing by prior inconsistent statements,

a tool used in cross-examination, as noted in California v. Green,

399 U.S. 149, 168 (1970), or (3) establish a bias in favor of the

Commonwealth in the form of a plea agreement or promise of leniency

regarding the pending charges against the absent witness, which

probably would be used as an important part of a cross-examination

which I think should have been afforded the defendant in the circuit

court.
 Further, I would reject the Commonwealth's claim that the

defendant had "the opportunity" to cross-examine the absent witness

at the preliminary hearing as in the case of Fisher v. Commonwealth,

217 Va. 808, 812, 232 S.E.2d 798, 801 (1977). In Fisher (as well as

in Shifflett v. Commonwealth, 218 Va. 25, 235 S.E.2d 316 (1977),

cited by the majority), the absent witness had testified as a

Commonwealth witness at the preliminary hearing and was thus subject

to cross-examination by the defendant.
Here, although the absent witness had been called by the

defendant at the preliminary hearing, the Commonwealth suggests that

the defendant's right of cross-examination was "protected" even

though "he did not avail himself of it." The Commonwealth reasons

that the defendant's right of cross-examination arose because the

absent witness's testimony "was clearly adverse to the defendant

when he stated that he saw the defendant rob [the victim]."

None of the three cases that the Commonwealth cites supports

its contention. In each case, the witness was held to be adverse

for reasons other than the fact that he or she gave testimony
unfavorable to the defendant. Trout v. Commonwealth, 167 Va. 511,

514-16, l88 S.E. 219, 220-21 (1936) (Commonwealth surprised by its

witness's testimony because of her prior inconsistent statements);

Nelson v. Commonwealth, 153 Va. 909, 919, 150 S.E. 407, 410 (1929)

(Commonwealth's witness proved adverse or hostile); Pendleton v.
Commonwealth, 131 Va. 676, 704, 109 S.E. 201, 211 (1921) (court

conducted direct examination of witness because she refused to
discuss case with Commonwealth's Attorney prior to trial).

In my opinion the rule in Virginia is that a witness does not

become adverse simply because his or her testimony is adverse or

injurious to the calling party's case, as perhaps in the preliminary

hearing in this case. Rather, an adverse witness is usually an

opposing party or a nonparty witness who has a financial or other

personal interest in the outcome of the case, or a witness who gives

surprising and unexpected adverse testimony. Butler v. Parrocha,

186 Va. 426, 432-33, 43 S.E.2d 1, 4-5 (1947); Maxey v. Commonwealth,

26 Va. App. 514, 520, 495 S.E.2d 536, 539 (1998).

For these reasons, I would reverse the judgment of the Court of

Appeals and remand the case to that Court with directions to remand

the case to the circuit court for a new trial to be conducted in

accordance with the principles expressed in this dissent.

Justice Lemons took no part in the consideration or decision of

this case.

This order shall be certified to the Court of Appeals of

Virginia and to the Circuit Court of the City of Chesapeake and

shall be published in the Virginia Reports.

A Copy,

Teste:

David B. Beach, Clerk
Costs due the Commonwealth
by appellant in Supreme
Court of Virginia:

Attorney's fee $725.00 plus costs and expenses

Teste:

David B. Beach, Clerk