Lester Frizzell Morris, Jr. v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia
LESTER FRIZZELL MORRIS, JR.
MEMORANDUM OPINION * BY
v. Record No. 2905-00-2 JUDGE LARRY G. ELDER
JANUARY 15, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Ernest P. Gates, Judge Designate
(Linwood T. Wells, III, on brief), for
appellant. Appellant submitting on brief.
Stephen R. McCullough, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Lester Frizzell Morris (appellant) appeals from his bench
trial convictions for grand larceny of an automobile, reckless
driving, eluding a police officer, and driving on a suspended
license. These convictions were rendered in a new trial
following the reversal of his original convictions for these
same offenses based on the trial court's improper failure to
strike a juror for cause. See Morris v. Commonwealth, No.
0060-99-2 (Va. Ct. App. May 16, 2000). In this second appeal,
appellant contends the trial court erroneously permitted the
assistant Commonwealth's attorney prosecuting the case to call
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
as a witness another member of the Commonwealth's Attorney's
office to give testimony regarding the claimed unavailability
for the second trial of one of the Commonwealth's witnesses, a
police officer. Appellant also contends the trial court abused
its discretion by accepting into evidence at his second trial
the transcribed testimony of the police officer and four other
witnesses, all of whom testified at appellant's first trial, and
the testimony of a sixth witness who was deposed before she
moved out-of-state prior to the first trial.
We hold that the admission of the testimony of an assistant
Commonwealth's attorney was not error under the facts of this
case. We also hold that, to the extent appellant preserved such
arguments for appeal, the evidence supported the trial court's
admission into evidence of the prior deposition and trial
testimony of the witnesses unavailable for appellant's second
trial. Therefore, we affirm appellant's convictions.
I.
A.
TESTIMONY OF PROSECUTOR
"[I]t is not desirable for the Commonwealth's Attorney to
testify as a witness on a material point in a case." Bennett v.
Commonwealth, 236 Va. 448, 464, 374 S.E.2d 303, 313 (1988).
"[A] Commonwealth's attorney [who] expects to testify on a
material point . . . should retire from the case and let another
be appointed to prosecute." Durrette v. Commonwealth, 201 Va.
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735, 745, 113 S.E.2d 842, 849 (1960); cf. Va. Rules of
Professional Conduct, Rule 3.7 (noting that lawyer or member of
his firm may testify in proceedings in which he is an advocate
if "the testimony relates to an uncontested issue"); Matney v.
Cedar Land Farms, Inc., 216 Va. 932, 937, 224 S.E.2d 162, 165-66
(1976) (citing former Va. Code of Prof. Resp., DR 5-101(B)(2))
(permitting law partner of defendant's trial counsel to testify
about preparation of deed because testimony "'relate[d] solely
to a matter of formality and there [was] no reason to believe
that substantial evidence [would] be offered in opposition to
the testimony'"). However, "[d]ecisions of this kind must be
left to the sound discretion of the trial court," Bennett, 236
Va. at 464, 374 S.E.2d at 313, and where allowing the testimony
"result[s] in no prejudice to the defendant," the trial court
does not abuse its discretion in permitting the testimony,
Durrette, 201 Va. at 745, 113 S.E.2d at 849. "[I]f the
testimony will be uncontested, the ambiguities in the
[attorney's] dual role are purely theoretical." Va. Rules of
Professional Conduct, Rule 3.7, cmt. [3]; see also Matney, 216
Va. at 937, 224 S.E.2d at 165-66. Thus, the mere fact that the
challenged testimony helps establish some matter on which the
Commonwealth bears the burden of proof does not necessarily
render that testimony material or prejudicial to the accused.
Here, the issue on which the Commonwealth offered the
testimony of James O'Connell, an assistant Commonwealth's
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attorney, related only to the unavailability of a witness,
Officer Mark Drennan, to testify and not to appellant's guilt or
innocence on the underlying charges. Thus, it was more in the
nature of a "formality" than "a material point." Bennett, 236
Va. at 464, 374 S.E.2d at 313; Matney, 216 Va. at 937, 224
S.E.2d at 166. Further, appellant did not offer any evidence in
opposition to O'Connell's testimony that Officer Drennan had
moved out-of-state. Although offering O'Connell's testimony may
have been ill-advised and it may have been possible for the
Commonwealth to have offered this same testimony through one of
Drennan's former colleagues at the police department, this
possibility did not render the trial court's admission of
O'Connell's testimony on Drennan's whereabouts an abuse of
discretion.
B.
ADMISSIBILITY OF TRANSCRIPTS
"Both the United States Supreme Court and the Supreme Court
of Virginia have long recognized the admissibility in a criminal
trial of prior recorded testimony of an unavailable witness
under certain circumstances." Sapp v. Commonwealth, 35 Va. App.
519, 525, 546 S.E.2d 245, 248 (2001). The party offering the
testimony must prove, as a "preliminary condition," that "the
declarant, whose former testimony is to be admitted into
evidence as a hearsay exception, [is] 'unavailable.'" Id.
(quoting Doan v. Commonwealth, 15 Va. App. 87, 100, 422 S.E.2d
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398, 405 (1992)). Even if the party offering the prior
testimony proves the witness is unavailable, the testimony will
be inadmissible if it violates the other party's right of
confrontation. See, e.g., Jones v. Commonwealth, 22 Va. App.
46, 52, 467 S.E.2d 841, 844 (1996).
Two recognized bases for establishing the requisite
unavailability of a witness are (1) that "'[t]he declarant is
absent from the state and the party is unable to obtain the
declarant's deposition'" and (2) that "'[t]he party has been
unable by diligent inquiry to locate the declarant.'" Doan, 15
Va. App. at 101, 422 S.E.2d at 406 (quoting Charles E. Friend,
The Law of Evidence in Virginia § 231 (3d ed. 1988)). "[D]ue
diligence requires, at a minimum, that a party attempt to
subpoena the witness or provide a reasonable explanation why a
subpoena was not issued[, by providing, for example,] evidence
that . . . the witness is . . . beyond the reach of the court."
McDonnough v. Commonwealth, 25 Va. App. 120, 129, 486 S.E.2d
570, 574 (1997).
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. Id. at 127, 486 S.E.2d
at 573. "[T]he sufficiency of the proof to establish the
unavailability of a witness is largely within the discretion of
the trial court, and, in the absence of a showing that such
discretion has been abused, will not be interfered with on
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appeal." Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660,
665 (1954).
The Commonwealth concedes appellant preserved for appeal
the confrontation issue but contends he failed to preserve the
due diligence issue. As set out above, the Commonwealth, as the
party offering the prior testimony into evidence, bore the
burden of proving the witnesses' unavailability, which included
proof that it used due diligence to attempt to locate those
witnesses. Here, the Commonwealth argued the witnesses were
unavailable, and the trial court expressly discussed and
considered the issue of the witnesses' unavailability and the
Commonwealth's efforts to locate them. In light of the
Commonwealth's and trial court's statements, appellant's
opposition to the admission of the prior testimony implicitly
challenged the Commonwealth's evidence to prove unavailability
and due diligence and, therefore, preserved these issues for
appeal in a general sense. However, as discussed more fully
below, appellant failed to provide the factual predicate
necessary to permit the trial court to rule properly on the
issue of availability of Anne and Sheree Cook for trial and,
thus, failed to preserve for appeal the only viable objections
to the admission of their testimony.
The evidence, viewed in the light most favorable to the
Commonwealth, established that both Regina Hannah and Officer
Mark Drennan lived out-of-state at the time of the second trial.
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As set out above, one of the bases for concluding a witness is
unavailable and permitting the admission of that witness' prior
testimony is that "'[t]he declarant [witness] is absent from the
state and the party is unable to obtain the declarant's
deposition.'" Doan, 15 Va. App. at 101, 422 S.E.2d at 406
(quoting Friend, supra, § 231) (emphasis added).
Assuming without deciding the Commonwealth did not attempt
to obtain Hannah's or Drennan's deposition for introduction at
appellant's second trial, we hold that such an effort was
unnecessary under the facts of this case. Both witnesses had
already testified under oath, subject to full cross-examination
by appellant. Hannah had testified by deposition in
anticipation of her departure from the state prior to
appellant's first trial. Similarly, Drennan had already
testified under oath in appellant's first trial for the same
offenses. The record contained no evidence that their
testifying a second time was likely to uncover relevant facts
not addressed in their original testimony. Thus, the trial
court did not commit reversible error in admitting the prior
deposition testimony of Hannah and the prior trial testimony of
Officer Drennan based on the absence of those witnesses from the
state.
As to the remaining witnesses, none of whom were alleged to
have moved out-of-state, the issue, for each witness for whom
appellant presented a proper factual predicate, is whether the
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Commonwealth "'[was] unable by diligent inquiry to locate the
declarant [witness].'" Id. (quoting Friend, supra, § 231)
(emphasis added).
The record established that the Commonwealth had a subpoena
issued for Exxon service station owner Michael T. Smith at his
business address. We hold that issuance of a subpoena for Smith
at his business address, the only address for him which appeared
in the record, constituted "a good faith, reasonable effort" to
locate Smith, see McDonnough, 25 Va. App. at 129, 486 S.E.2d at
574, and the return of the subpoena "NOT FOUND" was sufficient
to prove Smith was unavailable.
As to the testimony of Department of Motor Vehicles (DMV)
employee Carolyn Garrett, appellant argued that the Commonwealth
did not subpoena Garrett for the second trial, and the
Commonwealth offered no evidence that Garrett was beyond the
reach of the court. The trial court agreed the record contained
no subpoena for Garrett and noted, as a result, that "there is
no evidence that [Garrett] was not available." Thus, in
convicting appellant on retrial, the court did not consider
Garrett's testimony. 1
1
Even without Garrett's testimony, the trial court's
admission of appellant's DMV records to prove appellant's license
was suspended on February 7, 1998 was not error. See Code
§§ 46.2-215, 46.2-383, 46.2-395; see also Smoot v. Commonwealth,
18 Va. App. 562, 565-66, 445 S.E.2d 688, 690 (1994) (discussing
official documents exception to hearsay rule); Ingram v.
Commonwealth, 1 Va. App. 335, 337-38, 338 S.E.2d 657, 658 (1986)
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As to Anne Cook, the record contains no indication that the
Commonwealth attempted to subpoena her for the second trial and
no indication that attempting to subpoena her would have been
fruitless. However, the record also contains no indication that
appellant preserved this argument for appeal, see Rule 5A:18,
because he did not bring to the trial court's attention the
absence of a subpoena in the record for Anne Cook. If appellant
had presented this argument to the trial court, the Commonwealth
would have had an opportunity to offer evidence showing it
exercised due diligence in attempting to secure Anne Cook's
presence for trial. If the Commonwealth had failed to offer
such evidence, we presume the trial court would have ruled
correctly, as it did in the case of Carolyn Garrett, that the
Commonwealth failed to prove unavailability because it did not
take steps to have a subpoena issued. Thus, we hold that
appellant waived his right to challenge any error in admitting
Anne Cook's prior testimony by failing to bring to the trial
court's attention the absence of a subpoena for her.
Appellant similarly failed to preserve for appeal any
viable claim that Sheree Cook's prior testimony should not have
been admitted because the Commonwealth failed to prove she was
unavailable for the second trial. The trial court said the
record contained two subpoenas for Sheree Cook for the second
(discussing authentication of DMV records and citing Code
§ 46.1-34.1, now Code § 46.2-215).
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trial, one which was posted and another which was returned "Not
Found." Although the trial court's observations about the
existence of two subpoenas are not supported by the record,
appellant failed to bring this fact to the attention of the
trial court. 2 Thus, in the absence of a specific objection from
appellant, evidence that a subpoena issued to Sheree Cook was
returned "Not Found," as was the case with witness Michael
Smith, was sufficient to prove Sheree Cook was unavailable for
the second trial.
Appellant contends that even as to the witnesses for whom
the evidence established unavailability, the admission of their
prior testimony nevertheless violated his right of
confrontation. We disagree. "An accused's right to
confrontation is satisfied with respect to the admission of
prior testimony when the prior testimony was given under oath in
2
The record contains only one subpoena issued for Sheree
Cook for the second trial, which indicates it was served by
posting. A witness' failure to appear following service of a
subpoena by posting, without more, is insufficient to prove
unavailability because it leaves open the question of whether
the witness received the subpoena and failed to appear, was
detained on the way to court, or was truly unavailable in the
sense that the Commonwealth was "'unable by diligent inquiry to
locate [the witness].'" Doan, 15 Va. App. at 101, 422 S.E.2d at
406 (quoting Friend, supra, § 231). However, appellant's
counsel failed to bring to the trial court's attention the fact
that Cook was served only by posting and, thus, failed to
preserve this argument for appeal. Appellant's counsel also
failed to argue that the Commonwealth should have attempted to
subpoena Sheree Cook at Church's Fried Chicken, her place of
employment at the time of the first trial and where it had
successfully obtained personal service on her for the first
trial.
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an adversary judiciary proceeding . . . at which the accused had
an adequate opportunity to cross-examine the witness on the
issues which . . . develop at trial." Jones, 22 Va. App. at 52,
467 S.E.2d at 844; see Mancusi v. Stubbs, 408 U.S. 204, 216, 92
S. Ct. 2308, 2314, 33 L. Ed. 2d 293 (1972) (holding
Confrontation Clause not violated by introduction on retrial of
transcript of testimony of then-unavailable witness given at
defendant's first trial nine years earlier); Fisher v.
Commonwealth, 217 Va. 808, 812, 232 S.E.2d 798, 801 (1977)
(discussing Mancusi and observation in Pointer v. Texas, 380
U.S. 400, 407, 85 S. Ct. 1065, 1069, 13 L. Ed. 2d 923 (1965),
that presence of counsel and opportunity for full
cross-examination were highly relevant in determining whether
prior testimony of unavailable witness was admissible).
Here, appellant was represented by counsel in the original
trial and continues to be represented by the same attorney on
appeal. In the pretrial deposition and at the first trial,
appellant's attorney ably cross-examined the Commonwealth's
witnesses and attempted to impeach the credibility of the only
witness who could place appellant in the stolen car on the date
and time in question. The offenses on retrial were identical to
those in the first trial. Thus, the evidence supports the trial
court's implicit ruling that the introduction of the prior
testimony did not violate appellant's right of confrontation.
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II.
For these reasons, we hold that the admission of the
testimony of an assistant Commonwealth's attorney was not error
under the facts of this case. We also hold that, to the extent
appellant preserved such arguments for appeal, the evidence
supported the trial court's admission into evidence of the
challenged deposition and trial testimony of the witnesses
proved to be unavailable for appellant's second trial.
Therefore, we affirm appellant's convictions.
Affirmed.
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