Bailey v. Commonwealth

• Decision Date: 05 November 2013
• Docket Number: Record No. 0465–12–2.
• Citation: 749 S.E.2d 544,62 Va.App. 499
• Parties: Jared Benjamin BAILEY v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

62 Va.App. 499

749 S.E.2d 544

Jared Benjamin BAILEY

v.COMMONWEALTH of Virginia.

Record No. 0465–12–2.

Court of Appeals of Virginia,

Richmond.

Nov. 5, 2013.

Stacey T. Davenport (Davenport & Poindexter, P.C., on briefs), for appellant.

Elizabeth C. Kiernan, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FRANK, HUFF, JJ., and COLEMAN, S.J.

COLEMAN, Judge.

Jared Benjamin Bailey (appellant) appeals from his jury trial convictions for robbery, malicious wounding, conspiracy to commit robbery, and two counts of using a firearm in the commission of a felony. He contends the trial court abused its discretion in refusing to admit testimony under the declaration-against-penal-interest exception to Virginia's hearsay rule. We hold the trial court's refusal to admit the testimony was not error because appellant's invoking his right not to testify did not render him unavailable for purposes of the exception. Therefore, we affirm.

I. BACKGROUND

On the afternoon of March 18, 2011, Ron James, a computer software consultant from Atlanta, was beaten and robbed in Richmond of $37,000 in cash. Police identified appellant as one of the perpetrators.

At appellant's trial, the Commonwealth's theory of the case was that James's former girlfriend, Remia McPherson, conspired with appellant and a second man, Jamal Wiggins, to rob James. The Commonwealth's evidence showed that James had been conducting computer software training in Virginia for several months prior to the robbery and had year-to-date earnings from that job of approximately $58,000. Because James's bank was in Georgia, he often cashed his paychecks in Virginia and routinely carried at least one paycheck's worth of cash with him in a small vinyl bag. While James was dating McPherson, she had seen him retrieve money from this bag as needed. In the minutes before the robbery, James had arrived at the address where McPherson had directed him to pick her up. However, instead of finding McPherson there, James was confronted by appellant and Wiggins, who obviously knew about the bag of cash he carried. After James gave them his watch and necklace, appellant asked, “Where's the money?” When James said he had no money and offered them his laptop, appellant said, “Nah, that's not it. I want the money.” When appellant opened the trunk to give them his laptop, they immediately recognized and seized the vinyl bag. Additional evidence, including cell phone records, proved that McPherson, James's former girlfriend, had communicated with appellant and Wiggins on several occasions immediately before and leading up to the robbery. According to text messages exchanged by appellant and Wiggins, appellant texted, “I need this $ $ $ $ ” and “we are not going to need [guns] for this one, it's a simple tank.” When appellant was arrested, he was wearing James's watch.

At trial, appellant chose not to testify. However, appellant's theory of the case, which defense counsel undertook to develop through the testimony of Shannon Dougherty, appellant's girlfriend, was that he had met with James to sell him drugs. When James had tried to take the drugs without paying, he had merely taken the money he was due for the drugs. After the court sustained the Commonwealth's hearsay objection, appellant proffered Dougherty's testimony that she knew appellant was a drug dealer and she had seen him with guns. She testified further that in February 2011 appellant “ma[de] [her] aware of some type of drug or gun transaction that he was planning to be a part of.” He proffered additional testimony from Dougherty about his alleged statements to her both before and after the incident, including a statement he made to her from jail describing the incident as “an issue with a drug transaction that didn't go so well” because “[t]he contact ... pulled out his gun.” The trial court ruled the evidence was inadmissible hearsay.

On appeal, appellant argues that his statements to Dougherty were against his penal interest in that they showed his complicity in dealing illegal drugs and, thus, that they were admissible under the hearsay exception.

II. ANALYSIS

Various exceptions to Virginia's rule against hearsay allow the admission of out-of-court statements of a declarant to prove the truth of the matters asserted therein if the declarant is unavailable to testify at trial. See Rankins v. Commonwealth, 31 Va.App. 352, 362, 523 S.E.2d 524, 529 (2000). The statement-against-penal-interest exception requires the proponent to prove, in addition to unavailability, (1) that “the statement [was] against the declarant's interest at the time it was made[ ] and ... the declarant [was] subjectively aware [of this fact]” and (2) that “the record ... contain[s] evidence other than the declaration itself establishing its reliability, such as independent evidence connecting the declarant with the confessed crime.” Id.; see also Ayala v. Aggressive Towing & Transp., Inc., 276 Va. 169, 174, 661 S.E.2d 480, 483 (2008).

The trial court held appellant established the declarant's unavailability and the incriminating nature of the statements. However, it ruled Dougherty's testimony about appellant's alleged hearsay statements was inadmissible because the evidence failed to establish the reliability of those statements. Appellant contends sufficient corroborating evidence established the reliability of the proffered statements and, thus, that the trial court erred in excluding them. We hold the trial court erred as a matter of law in ruling that the testimony of the hearsay declarant—appellant—was unavailable. ¹ Because appellant had complete control over his own availability as a witness, we hold that he failed as a matter of law to prove his testimony was unavailable, and we conclude the trial court's refusal to admit the statements was not error. See Perry v. Commonwealth, 280 Va. 572, 581–82, 701 S.E.2d 431, 436–37 (2010) (holding “[a]n appellate court is not limited to the grounds offered by the trial court in support of its decision” and may affirm on any ground on which additional factual findings are not required).

“ ‘[T]he sufficiency of the proof to establish the unavailability of a witness is ... 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.’ ” Bennett v. Commonwealth, 33 Va.App. 335, 348, 533 S.E.2d 22, 29 (2000) (en banc) (quoting Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 665 (1954)). “However, ‘[a circuit] court by definition abuses its discretion when it makes an error of law.’ ” Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (alteration in original) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996)).

Virginia's appellate courts have not previously resolved the legal question of whether a defendant's invocation of his Fifth Amendment right not to testify satisfies the unavailability prong of the statement-against-interest exception. See Schmitt v. Commonwealth, 262 Va. 127, 144 n. 3, 547 S.E.2d 186, 198 n. 3 (2001) (expressly not addressing this issue). We therefore examine relevant principles underpinning the Virginia exception and find additional “guidance ... in federal jurisprudence,” Morgan v. Commonwealth, 50 Va.App. 369, 377–79, 650 S.E.2d 541, 545–46 (2007) (considering federal cases in determining whether a deported witness is “unavailable” for purposes of Virginia's prior testimony exception).

Rule 2:804² sets out various hearsay exceptions which “are applicable where the declarant is ... unavailable as a witness” or where, although the declarant is available, his testimony is not, see Sapp v. Commonwealth, 263 Va. 415, 424, 427, 559 S.E.2d 645, 649, 651 (2002) (setting forth the procedure to be followed when a witness claims to be unable to testify due to lack of memory of the relevant events). Unavailability is a threshold question, to be resolved before a court considers the content of the statement to determine whether it was against the declarant's penal interest and was sufficiently corroborated to be considered reliable. SeeRule 2:804(a) (“The hearsay exceptions set forth in subpart (b) hereof are applicable where the declarant is dead or otherwise unavailable as a witness.”).³

Recognized situations of unavailability include when:

“(1) The declarant is dead; (2) The declarant is too ill to testify; (3) The declarant is insane; (4) The declarant is absent from the state and the party is unable to obtain the declarant's deposition; (5) The party has been unable by diligent inquiry to locate the declarant; (6) The declarant cannot be compelled to testify; and (7) The opposite party has caused the declarant's absence.”

Bennett, 33 Va.App. at 348, 533 S.E.2d at 29 (quoting Doan v. Commonwealth, 15 Va.App. 87, 101, 422 S.E.2d 398, 406 (1992)). “[T]here is no ‘exhaustive list of the circumstances under which a declarant may be deemed “unavailable.” ’ ” Morgan, 50 Va.App. at 376, 650 S.E.2d at 544 (quoting Jones v. Commonwealth, 22 Va.App. 46, 51, 467 S.E.2d 841, 843–44 (1996)).

Appellant contends he was unavailable because he was “ ‘(6) [a] declarant [who could not] be compelled to testify,’ ” Bennett, 33 Va.App. at 348, 533 S.E.2d at 29 (quoting Doan, 15 Va.App. at 101, 422 S.E.2d at 406). “The law is firmly established in Virginia that a declarant is unavailable if the declarant invokes the Fifth Amendment privilege to remain silent.” Boney v. Commonwealth, 16 Va.App. 638, 643, 432 S.E.2d 7, 10 (1993) (citing Newberry v. Commonwealth, 191 Va. 445, 462, 61 S.E.2d 318, 326 (1950)), quoted with approval in Lilly v. Commonwealth, 255 Va. 558, 573, 499 S.E.2d 522, 533 (1998), rev'd on other grounds,527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). Appellant contends this holding is not limited to defense witnesses and extends also to an invocation of the Fifth...