Fisher v. Com.
| Decision Date | 04 March 1977 |
| Docket Number | No. 760515,760515 |
| Citation | 232 S.E.2d 798,217 Va. 808 |
| Parties | Harvey James FISHER v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Frank F. Arness, R. Wayne Nunnally, Portsmouth (Nunnally & Arness, Portsmouth, on brief), for plaintiff in error.
Guy W. Horsley, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
This is a criminal appeal which deals with the constitutional right of confrontation. U.S.Const. amends. VI, XIV, § 1; Va.Const. art. I, § 8. We consider whether testimony given by a witness during a preliminary hearing on a murder charge may properly be received as substantive evidence for the prosecution in the subsequent trial for both the murder and a robbery arising out of the same occurrence when the witness is deceased at the time of trial. We think the evidence was admissible and affirm.
On September 9, 1973, at about 11:00 p.m., Johnny Doho Lam, while accompanied by his wife, was fatally shot outside his restaurant in Hampton during the course of an armed robbery which occurred immediately after he had closed the business for the night. At the trial the Commonwealth's evidence showed that as Lam and his wife prepared to enter their automobile parked at the front door of the restaurant, the assailant approached the couple and demanded money. When Lam said he had none, Mrs. Lam threw her billfold to the assailant, who took it, shot Lam in the back of the head, and ran from the scene. Defendant Harvey James Fisher, sometimes known as James Harvey Fisher, was apprehended about 18 months later in Georgia and charged in a warrant with Lam's murder.
A preliminary hearing on the murder charge was held on July 3, 1975 in the General District Court of the City of Hampton at which Ronald McCarthy, an eyewitness to the shooting and an alleged accomplice of Fisher, testified that Fisher committed the murder. Following the hearing, the case was certified to the circuit court, the judge of the court not of record finding there was probable cause to charge defendant with the murder. See Code § 19.2--186 (then § 19.1--106); Rule 3A:5(b)(2)(ii).
Within two weeks after the preliminary hearing, the witness McCarthy was found stabbed to death in a motel room in Jacksonville Beach, Florida. On August 4, 1975, the Hampton grand jury indicted defendant for Lam's murder; defendant was also charged in two additional indictments with armed robbery of both Lams. During the December 1975 trial on the three indictments in the court below, over defendant's objection, a transcript of McCarthy's preliminary hearing testimony was read to the jury as a part of the Commonwealth's case. Defendant presented an alibi defense, claiming he was in Fayetteville, North Carolina, at the time of the crimes.
The jury found defendant guilty of the murder in the first degree, guilty of armed robbery of Mrs. Lam, and not guilty of robbery of Mr. Lam. On December 19, 1975, the trial court entered judgment on the jury's verdicts and sentenced Fisher to 20 years' confinement in the penitentiary for the murder and to ten years' imprisonment for the robbery. We awarded defendant a limited writ of error to consider the correctness of the trial court's action in permitting use of McCarthy's hearsay testimony in the trial on the merits.
We examine first the propriety of admitting the statement for use in the murder prosecution. In so doing, we study further the preliminary hearing.
Testifying during the hearing in addition to McCarthy were an investigating police officer and Mrs. Lam, the only other eyewitness to the shooting who also identified Fisher as the assailant. Defendant was present and was represented by the two attorneys who were subsequently trial counsel and who are now appellate counsel. During the hearing the prosecutor propounded 16 questions to McCarthy, the direct examination covering approximately five pages of the transcript. Defense counsel's cross-examination of the witness contains 135 questions and answers, comprising about 28 pages of transcript, which also includes repeated overruled objections made by the prosecutor. There was no redirect examination.
During the direct examination, McCarthy testified that he knew defendant, whom he identified in the courtroom; that he was with defendant when the crimes were committed and saw him 'pull a robbery and shoot a man'; that defendant was standing behind the man holding him 'by the shirt with the gun on his head'; that 'it all happened in a matter of a split second'; and that he 'saw the woman throw a pocketbook across the car . . . and (he) heard the gun to off. . . .'
During cross-examination, McCarthy stated he was unsure of the exact date of the crimes; that he and defendant lived in Fayetteville; that they came to Hampton on the day of the crimes 'to steal some money'; that they had initially planned to rob a 'bookie' in Hampton but as they waited outside the bookie's home they saw him with 'a lot of other people' and decided to rob the owner of the White Oaks Restaurant, located near Lam's restaurant. McCarthy testified that when he and defendant reached the White Oaks Restaurant they separated, McCarthy going to 'check' the back door which he found locked. The witness further testified that as he returned to the front of that restaurant, he saw Fisher about 35 yards away 'commit this particular act.'
Contending the only 'role' he played was to run from the scene with Fisher after the shooting, McCarthy described in detail Fisher's physical appearance and dress at the time. He further testified defendant told him, as they were leaving the scene in an automobile which they had parked in the vicinity, that 'he didn't know how he shot the man or why' and that He also stated that after the shooting he saw defendant handling money, which was contained in a lady's wallet in Fisher's possession.
Further on cross-examination, McCarthy admitted that he was wanted by the police on a number of 'bad check' offenses for which he had not been arrested; that he had been previously convicted of a felony; that he had been arrested and charged with Lam's murder; and that the Hampton police had promised to drop the 'check charges' against him if he 'testified to what (he) knew about' the Lam crimes and if he made 'restitution on all the checks.' McCarthy further admitted that approximately a month after the murder and before he had been arrested for it, he made 'demand upon the outstanding reward money that (had) been posted (in a substantial amount) for this crime'. Cross-examination raised the inference that McCarthy had been led to believe that if he testified against Fisher, the murder charge against him would not be prosecuted.
At the trial, the fact of McCarthy's death was stipulated; the court reporter, who took down and transcribed the testimony at the preliminary hearing, authenticated the accuracy of the transcript, from which McCarthy's sworn testimony was read to the jury.
Respecting use of the testimony to support the murder charge, defendant contends his constitutional right to confront the witnesses against him was violated because the jury was deprived of the 'opportunity to observe the appearance and demeanor of the witness', and because 'the limitation of cross-examination at a preliminary hearing held only to establish probable cause is not the type of confrontation that satisfies either' the federal or state constitutional guarantees. We disagree.
Since at least near the turn of the century, this Court, and the Supreme Court, of the United States, have recognized the admissibility in a criminal trial of prior-recorded testimony of an unavailable witness under certain circumstances. In Parks v. Commonwealth, 109 Va. 807, 63 S.E. 462 (1909), Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), we sustained defendant's contention the trial court erred in refusing to receive in evidence the testimony given by defendant's deceased wife at a former Trial of the case, at which the witness was cross-examined by the Commonwealth's Attorney. Disapproving dicta in three earlier cases, the Parks court decided that such evidence was...
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