Nowlin v. Commonwealth

                        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.

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     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.

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