Bilokur v. Com.

• Decision Date: 10 October 1980
• Docket Number: No. 791833,791833
• Citation: 270 S.E.2d 747,221 Va. 467
• Parties: Derrick BILOKUR v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 747

270 S.E.2d 747

221 Va. 467

Derrick BILOKUR v. COMMONWEALTH of Virginia.

Record No. 791833.

Supreme Court of Virginia.

Oct. 10, 1980.

Vincent A. Bertolini, Norfolk, for appellant.

Richard B. Smith, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

POFF, Justice.

Argument at bar was confined to the question whether a defendant's statutory right to be present at trial and his constitutional right of confrontation were abridged by the stipulation into evidence of an incriminating extrajudicial statement.

Sitting without a jury, the trial court convicted Derrick Bilokur of maiming his five-year-old half-sister, Melanie Stawecki; of breaking and entering the home of Mr. and Mrs. Robert Kelly; of maimimg Mrs. Kelly; and of assaulting the arresting officer. He was sentenced to serve a total of 40 years in the penitentiary on the maiming convictions. Sentences imposed on the other convictions were suspended.

The defendant entered a plea of not guilty by reason of insanity. The Commonwealth's evidence that Bilokur had committed the several offenses was uncontradicted. Testifying in his own behalf, the defendant described a history of drug abuse and mental therapy. He admitted stabbing Melanie with a kitchen knife and striking her on the head with a table but remembered nothing about the other offenses and could give no explanation for his conduct. Psychiatric proof that Bilokur was competent to stand trial and that he was sane when the offenses were committed was fully sufficient to support the trial court's rejection of the defendant's plea.

Two days before arraignment, counsel for the Commonwealth and the defendant jointly conducted an interrogation of Melanie. Melanie was not sworn, and the defendant was not present. Melanie described the attack in detail and identified Bilokur as her assailant. With the defendant standing mute, defendant's trial counsel stipulated a transcript of the interrogation into evidence in lieu of Melanie's personal testimony. Defendant's appellate counsel, whose motion to set aside the judgments was denied, contends that the use of the transcript violated Bilokur's statutory right to be present at trial and his constitutional right of confrontation.

I.

Code § 19.2-259 provides that "(a) person tried for felony shall be personally present during the trial." ¹ This provision is "merely declaratory of a principle of the common law"; it is "an essential part of the process of law ... without which the courts have no jurisdiction to pronounce judgment"; and it is a right which "the accused cannot waive". Noell v. Commonwealth, 135 Va. 600, 608-09, 115 S.E. 679, 681 (1923) (applying principles announced in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884)); accord, Lewis and Grant v. Commonwealth, 212 Va. 411, 184 S.E.2d 818 (1971). The statutory phrase "during the trial" has been defined as "every stage of the trial from [the accused's] arraignment to his sentence, when anything is to be done which can affect his interest." Palmer v. Commonwealth, 143 Va. 592, 605, 130 S.E. 398, 402 (1925).

It was the introduction of the transcript of Melanie's interrogation into evidence, not the conduct of the interrogation, which might have affected the defendant's interest. The orders entered upon the four convictions recite, and there is nothing of record to contradict the recitation, that Bilokur was present at every stage of the trial. We conclude, therefore, that the defendant's statutory right of presence was not abridged by introduction of the transcript.

II.

We turn now to the constitutional issue. An accused has the right to be confronted by his "accusers and witnesses", Va.Const. art. I, § 8, and "the witnesses against him", U.S.Const. Amend. VI. We enquire whether the introduction of incriminating extrajudicial statements against an accused offends the constitutional guarantees and, if so, whether the right to invoke these guarantees may be waived by an accused or his counsel.

A.

"In Virginia, in criminal cases, (the right of cross-examination of prosecution witnesses) is preserved to the accused by the constitutional guarantee of confrontation." Moore v. Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961). See also Whittaker v. Commonwealth, 217 Va. 966, 234 S.E.2d 79 (1977); Woody v. Commonwealth, 214 Va. 296, 199 S.E.2d 529 (1973). Concerning the Sixth Amendment guarantee, which the Fourteenth Amendment makes applicable to the states, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the Supreme Court has explained:

"The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits ... being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." ²

Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895).

We recently considered "whether testimony given by a witness during a preliminary hearing ... may properly be received as substantive evidence for the prosecution in the subsequent trial ... when the witness is deceased at the time of trial." Fisher v. Commonwealth, 217 Va. 808, 809, 232 S.E.2d 798, 799 (1977). In Mattox v. United States, supra, 156 U.S. at 241, 15 S.Ct. at 339, the Supreme Court had said that "the authority in favor of the admissibility of such testimony, where the defendant was present either at the examination of the deceased witness before a committing magistrate, or upon a former trial of the same case, is overwhelming". Quoting that language and noting that the testimony of a deceased witness had been "given under oath in a judicial proceeding which was distinctly adversary" and that "the transcript of ... testimony at the preliminary hearing carried sufficient indicia of reliability and provided the jury a satisfactory basis for evaluating the truth of (the deceased witness') prior statements", 217 Va. at 813, 232 S.E.2d at 802, we rejected the defendant's claim that his constitutional right of confrontation had been abridged.

Relying upon Fisher, we denied a similar claim in a case where there was no transcript of the testimony at the preliminary hearing.

"(I)n criminal cases the preliminary hearing testimony of a witness who is absent from the subsequent trial because of death may be proved by the oral testimony of a person who was present at the former trial and heard the witness testify. In applying this rule, however, it must be shown: (1) that the witness is dead; (2) that the testimony of the witness was given under oath ...; (3) that the person who seeks to relate the testimony of the absent witness can state the subject matter with clarity and in detail; and (4) that the party against whom the witness was offered was present with counsel and was afforded the opportunity of cross-examination. (Citations omitted)."

Shifflett v. Commonwealth, 218 Va. 25, 28, 235 S.E.2d 316, 318-19 (1977).

The principle underlying the decisions in these cases is that the constitutional right of confrontation does not attach where the prior testimony of a witness unavailable at trial bears sufficient indicia of reliability. ³ But here, Melanie's testimony was not taken in a judicial proceeding, the interrogation was not adversary, Melanie was not under oath, her statements positively incriminated Bilokur, the defendant was not present to conduct or assist his counsel in conducting cross-examination, and nothing of record indicates that Melanie was unavailable to testify in person at trial. Hence, none of the indicia of reliability present in Fisher and Shifflett is present here.

We believe, therefore, that the defendant had the right to invoke the constitutional guarantee of confrontation against the introduction of the transcript of Melanie's interrogation.

B.

We must now decide whether such a right may be waived by an accused or his counsel.

While there is always a "presumption against a waiver of fundamental constitutional rights", Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and "the Sixth Amendment's right of an accused to confront the witnesses against him is ... a fundamental right", Pointer v. Texas, supra, 380 U.S. at 403, 85 S.Ct. at 1068, the right may be waived by a guilty plea, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), by a defendant's disruptive conduct in the courtroom, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), by a defendant's voluntary absence from trial, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), and by a defendant's intimidation of a grand jury witness from testifying at trial, United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977).

None of these cases addressed the question whether defense counsel has the power to waive his...