Clifton S. Longshore, Jr. v. Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia
CLIFTON S. LONGSHORE, JR.
MEMORANDUM OPINION * BY
v. Record No. 1007-98-1 JUDGE NELSON T. OVERTON
JULY 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Robert S. Wahab, Jr., Judge Designate
Peter J. Jankell for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
The trial judge convicted Clifton S. Longshore, Jr. of
robbery. On this appeal, Longshore contends the trial judge erred
by permitting the Commonwealth to introduce into evidence the
preliminary hearing testimony of a witness who failed to appear at
trial. Specifically, he argues that the witness' testimony was
hearsay and that the admission of the testimony violated his Sixth
Amendment right to confront the witness. We disagree and affirm
the conviction.
I.
Clifton S. Longshore, Jr. was arrested for robbing Travis
Bundy. At the preliminary hearing in the general district court,
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Bundy testified that the robbery occurred while he and Longshore
were in a jail cell. Longshore's attorney called as a witness
Thomas Lupton, who had been detained in the same jail cell. At
the conclusion of the hearing, the general district court judge
found probable cause to believe the robbery occurred. A grand
jury indicted Longshore for the robbery.
Longshore's trial in the circuit court was scheduled for June
1997 and then continued to August 1997. Prior to the August
trial, the prosecutor sought to obtain a ruling in limine
permitting the Commonwealth to use at trial the preliminary
hearing testimony of Lupton, whom the prosecutor claimed was
unavailable to testify. In support of the motion, the prosecutor
called as a witness the detective who investigated the robbery
complaint. The detective testified that he spoke with Lupton a
month prior to the preliminary hearing and on the day of the
preliminary hearing. When Lupton failed to appear for the June
trial, the detective called Lupton's residence and spoke with
Lupton's mother, who said Lupton no longer lived there. Lupton's
mother said she would try to get a message to Lupton. After a
period of time with no response, the detective again called
Lupton's mother who said she had not had any recent contact with
Lupton and did not know where he was.
Contacting the Department of Motor Vehicles and the postal
inspector, the detective learned that Lupton had not changed his
address with those agencies. The detective then located a pager
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number associated with Lupton, an employment address, and an
employment telephone number. The person who responded to the page
did not know Lupton. The person who answered the telephone at the
employment number told the detective Lupton no longer worked there
and left no forwarding address. On cross-examination, the
detective testified he had checked several local jails but had not
contacted the Department of Corrections. He did not inquire of
other jail facilities outside the local area.
Expressing a concern "about the reliability" of Lupton's
preliminary hearing testimony and proof of "due diligence," the
trial judge granted a short recess to give the prosecutor
additional time to locate Lupton. After a recess of several
hours, the detective testified that he had checked all the local
jails. The prosecutor represented that additional checks had been
performed unsuccessfully through Lupton's "criminal history"
record. The prosecutor also represented that she had asked Lupton
to keep in touch with her after the preliminary hearing. Over
Longshore's objection, the trial judge ruled that Lupton's
preliminary hearing testimony was admissible as "an exception to
the hearsay rule."
At trial, which immediately followed the in limine ruling,
Bundy testified that on October 15, 1996, he was in the jail's
holding cell after having been arrested for misdemeanor
shoplifting. Longshore and ten other men were also in the cell.
After midnight, Longshore approached Bundy, commented on Bundy's
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shoes, and asked if he could have them. Bundy refused to give
them to Longshore. Later, Longshore again approached Bundy and
asked how much Bundy's ring cost and asked if he could have it.
When Bundy refused, Longshore grabbed him around the neck,
demanded Bundy's ring and bracelet, and threatened to hit Bundy's
head against the bars if Bundy did not comply. Bundy gave
Longshore both the ring and a bracelet. After Bundy was released
from jail, he reported the robbery.
Over Longshore's objection to Lupton's preliminary hearing
testimony, the judge allowed as evidence Lupton's testimony as
recorded in the transcript of the preliminary hearing. Testifying
on direct examination as Longshore's witness, Lupton said he was
sitting next to Bundy in the holding cell when Longshore
approached Bundy and "demanded all of his stuff, the money and the
ring on [Bundy's] finger." According to Lupton's testimony,
Longshore walked away, then returned to Bundy, demanded Bundy's
shoes, and threatened to "beat [Bundy] up." On cross-examination
by the Commonwealth, Lupton said Longshore "got a chain from . . .
Bundy . . . [and] took the ring off of Bundy's finger." Lupton
also testified that a police officer later approached him and
asked if he had seen the incident.
At the conclusion of the Commonwealth's case-in-chief in the
circuit court, Longshore offered the testimony of several
witnesses, including two men who were in the same holding cell
with Bundy and Longshore. Christopher Bower testified that he did
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not see Longshore take jewelry from anyone. He testified that he
was "mostly, trying to sleep" but was able to hear "mostly
everything that was going on." James Morris also testified that
he did not see anyone take jewelry from anyone else.
The trial judge convicted Longshore of robbery. This appeal
followed.
II.
"It is well established that '[t]estimony given at a former
trial is admissible as an exception to the hearsay rule if certain
requirements are met.'" Jones v. Commonwealth, 22 Va. App. 46,
50, 467 S.E.2d 841, 843 (1996) (citation omitted). These
requirements are as follows:
"(1) The original witness must be
unavailable. (2) The witness who is now
unavailable must have been testifying under
oath (or affirmation) at the former trial.
(3) The issues must be substantially the
same in both trials. (4) The party against
whom the hearsay testimony is now offered
(or his privy in interest) must have been a
party in the former trial. (5) The witness
who is now testifying as to what was said at
the former trial must be able to do so with
reasonable accuracy."
Doan v. Commonwealth, 15 Va. App. 87, 100, 422 S.E.2d 398, 405
(1992) (citation omitted). The party offering the testimony
bears the burden of establishing the witness' unavailability.
See Jones, 22 Va. App. at 50, 467 S.E.2d at 843. Longshore
contends the Commonwealth failed to meet that burden.
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"'[A] declarant is unavailable if the party seeking to
introduce the statement has been unable by diligent inquiry to
locate the declarant.'" Cooper v. Commonwealth, 26 Va. App.
537, 542, 496 S.E.2d 77, 79 (1998) (citation omitted). We have
held that reasonable or "[d]ue diligence is that amount of
prudence 'as is properly to be expected from, and ordinarily
exercised by, a reasonable and prudent man under the particular
circumstances.'" McDonnough v. Commonwealth, 25 Va. App. 120,
128, 486 S.E.2d 570, 574 (1997) (citation omitted). This
standard "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. Furthermore, "it is
well established that the sufficiency of the proof to establish
the unavailability of a witness is largely within the discretion
of the trial [judge], and, in the absence of a showing that such
discretion has been abused, will not be interfered with on
appeal." Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660,
665 (1954).
The evidence at the pretrial hearing established that prior
to Longshore's preliminary hearing Lupton lived with his family
at an address on Fourth Street in Chesapeake. Lupton appeared
at the preliminary hearing in response to the Commonwealth's
subpoena sent to that address. Prior to Longshore's scheduled
trial in June, the Commonwealth issued a subpoena for Lupton
which was posted at the same address in Chesapeake. See
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McDonnough, 25 Va. App. at 129, 486 S.E.2d at 574 ("hold[ing]
. . . 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"). However, Lupton
failed to appear at court in response to that subpoena. When
the trial was continued, the detective twice called Lupton's
home address and spoke with Lupton's mother in unsuccessful
attempts to locate Lupton. The detective contacted the postal
service, the Department of Motor Vehicles, penal facilities, and
Lupton's former employer. All these attempts proved
unsuccessful.
Based on this evidence, the trial judge was sufficiently
apprised of the Commonwealth's efforts and ruled that reasonable
or due diligence had been exercised. Unlike the circumstances
in Doan, where the moving party made no showing of any attempt
to secure the witness, see 15 Va. App. at 101, 422 S.E.2d at
406, the Commonwealth in this instance made a sufficient showing
of its efforts. We, therefore, conclude that the trial judge's
finding that the Commonwealth exercised "reasonable [or due]
diligence" did not constitute an abuse of discretion.
III.
Longshore also argues that because the preliminary hearing
is held for "a substantially different purpose than to establish
if the accused committed a crime," the prior testimony exception
is not applicable to testimony given at a preliminary hearing.
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We disagree. Numerous cases in Virginia have held that
testimony is admissible at trial if it was given at a
preliminary hearing by a witness who is later unavailable at
trial, provided all of the constitutional and hearsay
constraints are properly addressed. See e.g., Shifflett v.
Commonwealth, 218 Va. 25, 235 S.E.2d 316 (1977); Fisher v.
Commonwealth, 217 Va. 808, 232 S.E.2d 798 (1977); Jones, 22 Va.
App. 46, 467 S.E.2d 841.
Longshore contends these cases are distinguishable because
Lupton was a defense witness. He argues that he did not have
the opportunity to cross-examine or impeach Lupton, as would be
the case at trial. However, the record does not establish that
Longshore was denied the opportunity to declare Lupton a hostile
witness once Lupton began corroborating Bundy's testimony and to
vigorously examine Lupton once his testimony became adverse.
See Code § 8.01-403. We see no reason to deviate from the rule
that testimony from a preliminary hearing may, under these
circumstances, be admitted into evidence at a subsequent trial.
IV.
Longshore further claims that the admission of Lupton's
preliminary hearing testimony at trial violated his
constitutional right "to be confronted with the witnesses
against him." U.S. Const. amend. VI; See e.g. Pointer v. Texas,
380 U.S. 400, 406-07 (1965) (ruling that "a major reason
underlying the constitutional confrontation rule is to give a
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defendant charged with crime an opportunity to cross-examine the
witnesses against him"). However, we note that the Supreme
Court has held that the admission of an unavailable witness'
prior trial testimony does not necessarily violate the
Confrontation Clause. See Mattox v. United States, 156 U.S. 237(1895). This is true so long as the moving party demonstrates
(1) that the declarant is "unavailable," and (2) that the
declarant's statement "bears adequate 'indicia of reliability.'"
Ohio v. Roberts, 448 U.S. 56, 66 (1980).
Unavailability, for constitutional purposes, requires a
showing that "the prosecutorial authorities have made a
good-faith effort to obtain [the declarant's] presence at
trial." Barber v. Page, 390 U.S. 719, 724-25 (1968). "The
lengths to which the prosecution must go to produce a witness
. . . is a question of reasonableness." California v. Green,
399 U.S. 149, 189 n.22 (1970) (Harlan, J., concurring); Roberts,
448 U.S. at 74.
"Reliability can be inferred without more in a case where
the evidence falls within a firmly rooted hearsay exception [or
upon] . . . a showing of particularized guarantees of
trustworthiness." Roberts, 448 U.S. at 66 (footnote omitted).
The prior trial testimony of a witness who was unavailable to
testify at a subsequent trial has been held to be sufficiently
reliable if "there was an adequate opportunity to cross-examine
[the witness] at the first trial, and counsel for [the
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defendant] availed himself of that opportunity." Mancusi v.
Stubbs, 408 U.S. 204, 216 (1972).
Applying these principles, we have held that "[o]nly when
[a] witness' unavailability is proved, the issues and parties
are the same, and complete and adequate cross-examination has
been afforded on the issues, may testimony from another hearing
be admitted at a subsequent trial." Lassiter v. Commonwealth,
16 Va. App. 605, 614, 431 S.E.2d 900, 906 (1993). We believe
the record proves this standard has been met. The trial judge
properly found from the evidence that the Commonwealth exercised
due diligence in its attempts to locate Lupton. Furthermore,
Lupton's testimony was constitutionally reliable.
The circumstances under which the prior testimony was
admitted at trial in Roberts are strikingly similar to these
circumstances. In Roberts, a defense witness at the preliminary
hearing gave testimony favorable to the prosecution. See 448
U.S. at 58. The witness was not declared hostile during the
direct examination. See id. Later, the defendant was indicted.
At trial, the trial judge ruled that the witness was unavailable
and admitted into evidence a transcript of the witness'
preliminary hearing testimony. See id. at 59-60. In ruling
that the defendant's Sixth Amendment rights were not violated,
the Supreme Court held that "'there was an adequate opportunity
to cross-examine [the witness], and counsel . . . availed
himself of that opportunity, the transcript . . . bore
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sufficient "indicia of reliability" and afforded "'the trier of
fact a satisfactory basis for evaluating the truth of the prior
statement.'"'" Id. at 73 (citations and footnote omitted).
The record in this case establishes that Lupton's statement
at the preliminary hearing had already been given under
circumstances closely approximating those that surround the
typical trial. Longshore was represented by counsel; Longshore
had every opportunity to cross-examine Lupton; and a judicial
record of the hearings was created. Under these circumstances,
Lupton's statement was admissible at trial. See Green, 399 U.S.
at 165. See also Shifflett, 218 Va. at 29, 235 S.E.2d at 319.
In conclusion, Lupton's preliminary hearing testimony was
admissible at Longshore's trial under the prior testimony
exception to the hearsay rule. Further, Longshore's Sixth
Amendment confrontation rights were not violated. We therefore
affirm the conviction.
Affirmed.
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Benton, J., concurring, in part, and dissenting, in part.
I concur in Parts I and II. I disagree, however, with the
majority's holding that Longshore's Sixth Amendment right "to be
confronted with the witnesses against him" was not violated. I
therefore dissent.
In "hold[ing] . . . that the 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), the Supreme Court indicated that "a major reason
underlying the constitutional confrontation rule is to give a
defendant charged with crime an opportunity to cross-examine the
witnesses against him." Id. at 406-07. In Pointer, an
unavailable witness' preliminary hearing testimony was used at
trial over the defendant's objection. The defendant did not
cross-examine the witness at the preliminary hearing. Id. at
401. The Court ruled that the use of the witness' testimony at
trial violated the defendant's Sixth Amendment right to confront
the witness.
Pointer contains dicta noting that "[t]he case . . . would
be quite a different one had [the witness'] statement been taken
at a full-fledged hearing at which petitioner had been
represented by counsel who had been given a complete and
adequate opportunity to cross-examine." Id. at 407 (emphasis
added). This dicta, and dicta from California v. Green, 399
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U.S. 149, 165 (1970), have been used by courts to suggest that
the Confrontation Clause analysis is focused not on whether the
defendant actually cross-examined the defendant, but whether the
defendant was afforded the opportunity to cross-examine. See
Ohio v. Roberts, 448 U.S. 56, 70 (1980). As to date, the
Supreme Court has yet to resolve these issues. Furthermore, I
believe it is significant that the Court's dicta recognized this
possible exception might occur only if the prior testimony was
given at "a full-fledged hearing." Pointer, 380 U.S. at 407.
In Roberts, the defendant was charged with forgery of a
check and with possession of stolen credit cards. 448 U.S. at
58. Similar to the case before us, a witness called to testify
for the defense at the preliminary hearing gave testimony
favorable to the prosecution. See id. The defendant's counsel,
however, "did not ask to have the witness declared hostile and
did not request permission to place her on cross-examination."
Id. Instead, defense counsel thoroughly examined the witness
using leading questions. See id. at 70. When the witness
failed to appear at trial, the trial judge permitted the
prosecutor to enter into evidence the witness' preliminary
hearing testimony. See id. at 59-60. The Supreme Court held
that there was no Confrontation Clause violation. The Court,
however, did "not decide whether . . . the mere opportunity to
cross-examine [or even de minimis cross-examination] rendered
the prior testimony admissible" because the record clearly
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established that defense counsel "tested [the preliminary
hearing witness'] testimony with the equivalent of significant
cross-examination." Id. at 70 (emphasis added). The Court
noted that "[n]o less than 17 plainly leading questions were
asked [by defense counsel of the witness]." Id. at 70 n.11.
The issue, therefore, was left unresolved.
We are left, however, with the following language, which
provided the basis for the Court's decision:
In sum, we perceive no reason to resolve the
reliability issue differently here than the
Court did in Green. "Since there was an
adequate opportunity to cross-examine [the
witness], and counsel . . . availed himself
of that opportunity, the transcript . . .
bore sufficient 'indicia of reliability' and
afforded '"the trier of fact a satisfactory
basis for evaluating the truth of the prior
statement."'"
Id. at 73 (citation omitted) (emphasis added). The holding in
Roberts, therefore, is premised on the defendant not only having
the opportunity to cross-examine, but having actually
cross-examined the witness. Indeed, on the question whether
prior trial testimony of a witness is admissible at a subsequent
trial when the witness is unavailable to testify, the Court has
held that the prior testimony is sufficiently reliable if "there
was an adequate opportunity to cross-examine [the witness] at
the first trial, and counsel for [the defendant] availed himself
of that opportunity." Mancusi v. Stubbs, 408 U.S. 204, 216
(1972) (emphasis added). See also Lassiter v. Commonwealth, 16
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Va. App. 605, 614, 431 S.E.2d 900, 906 (1993) (holding that
"[o]nly when [a] witness' unavailability is proved, the issues
and parties are the same, and complete and adequate
cross-examination has been afforded on the issues, may testimony
from another hearing be admitted at a subsequent trial"
(emphasis added)).
In contrast, the facts before us prove that Longshore's
counsel neither cross-examined Lupton at the preliminary hearing
nor engaged in the functional equivalent of cross-examination.
Lupton's testimony was not "tested . . . with [any] equivalent
of . . . cross-examination." Roberts, 448 U.S. at 70.
Longshore's counsel's failure to cross-examine Lupton at the
preliminary hearing could stem from a number of legitimate
reasons, including the fact that Lupton was subpoenaed by the
Commonwealth but not used as its witness. Indeed, Lupton's
direct testimony at the preliminary hearing proved that
Longshore made demands of Bundy but did not prove that a robbery
occurred. Moreover, in Virginia a preliminary hearing poses
limitations on defense counsel because the Supreme Court has
ruled defense counsel may not use the proceeding for the purpose
of discovering evidence to be used at trial. See Williams v.
Commonwealth, 208 Va. 724, 729, 160 S.E.2d 781, 784 (1968). In
this context, we must be mindful of the proper role of a
preliminary hearing in the truth finding process.
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The right to confrontation is basically a
trial right. It includes both the
opportunity to cross-examine and the
occasion for the jury to weigh the demeanor
of the witness. A preliminary hearing is
ordinarily a much less searching exploration
into the merits of a case than a trial,
simply because its function is the more
limited one of determining whether probable
cause exists to hold the accused for trial.
Barber v. Page, 390 U.S. 719, 725 (1968).
Because Longshore's questioning of Lupton at the
preliminary hearing was neither cross-examination nor its
equivalent, I would hold that Lupton's testimony was entered
into evidence at trial in violation of the Confrontation Clause.
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