McDonnough v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: COLEMAN
• Citation: McDonnough v. Com., 486 S.E.2d 570, 25 Va.App. 120 (Va. App. 1997)
• Decision Date: 24 June 1997
• Docket Number: No. 2947-95-2,2947-95-2
• Parties: Audley C. McDONNOUGH v. COMMONWEALTH of Virginia. Record

Page 570

486 S.E.2d 570

25 Va.App. 120

Audley C. McDONNOUGH v. COMMONWEALTH of Virginia.

Record No. 2947-95-2.

Court of Appeals of Virginia Richmond.

June 24, 1997.

Stephen T. Harper, Richmond (Bradford F. Johnson; Johnson & Walker, P.C., on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: COLEMAN, ELDER and FITZPATRICK, JJ.

COLEMAN, Judge.

The defendant, Audley McDonnough, was convicted in a jury trial of possessing cocaine and distributing cocaine. On appeal, he contends the trial court erred by admitting into evidence the hearsay statement of the person to whom he sold the drugs. The court admitted the statement under the "declaration against interest" exception to the hearsay rule. The defendant asserts the Commonwealth failed to prove that the declarant was unavailable to testify at trial or that the declarant's statement was against his penal interest. The defendant also asserts that admission of the statement violated his Sixth Amendment right of confrontation.

The evidence fails to prove that the Commonwealth issued a subpoena for the hearsay declarant, who was known to have recently resided in Richmond. We hold, therefore, that the evidence fails, as a matter of law, to support the trial court's findings that the Commonwealth exercised due diligence in attempting to obtain the declarant's presence at trial and that the declarant was "unavailable." However, because the other evidence of the defendant's guilt is overwhelming, we hold that the error in admitting the declarant's hearsay statement was harmless. Accordingly, we affirm the defendant's convictions. ¹

On appeal we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). While Richmond City Police Officer Schnupp was conducting surveillance in the 3400 block of East Marshall Street in Richmond, he observed the defendant engaged in what appeared to be drug transactions from the porch of a house. Between 8:00 and 9:00 p.m., Officer Schnupp observed three or four individuals approach and speak with the defendant on the porch. After some discussion with each person, the defendant would place a plastic bag containing a rock-like object on the porch. The individual would then pick up the bag containing the rock-like object and place down cash which the defendant would retrieve after the person left. After each transaction, the defendant would go inside the house, a light would come on briefly upstairs, and then the light would go off before the defendant would reappear on the porch. Schnupp described the defendant as a black male with dreadlocks, wearing a red University of Maryland sweatshirt, glasses, a stud earring in his left ear and a dark hat. This description matched the defendant's appearance when he was arrested later that evening.

Around 9:00 p.m., a dark-colored Renault stopped and a white male, later identified as Robert Henshaw, exited the automobile and went to the house. The defendant stepped down from the porch, approached Henshaw, and handed him a plastic baggie in exchange for money. As Henshaw drove away, Officer Schnupp called for a "takedown" unit to apprehend Henshaw and for another unit to arrest the defendant.

Henshaw was stopped in his car about ten seconds after Officer Schnupp ordered the "takedown" call. There were three other occupants in Henshaw's car. Henshaw consented to be searched, and, as a result the officers found a glass pipe and a plastic baggie containing a rock of cocaine in Henshaw's jacket pocket. A search of the other occupants disclosed no drugs. After Henshaw's arrest, he told the police that he had just bought the cocaine from a black male, approximately twenty-three years old, with dreadlocks, wearing a red sweatshirt, and that he paid $25 for it. Henshaw told the police that he had purchased cocaine from this person "about a hundred times." The police officer transcribed Henshaw's statement and Henshaw signed it.

Several hours after Henshaw's arrest, the police executed a search warrant at the Marshall Street house where the defendant had engaged in the transactions. In the bedroom where Officer Schnupp had observed the light go on and off, the police officers found a locked tackle box containing four bags of cocaine, a set of digital scales, and a small black purse. They also found a shoe and a pair of jeans containing cocaine and $214 in cash. Corey Jones, the owner of the house, initially told police that the drugs found in the house were his; however, at trial, he testified that the cocaine in the tackle box belonged to the defendant and that the defendant had given him cocaine to sell. Jones said that the defendant had the key to the tackle box and did not allow Jones to open it.

In a search of the defendant incident to his arrest, the police found $621 in cash, a pager, and a wallet containing two keys. One of the keys fit the lock on the tackle box found in the bedroom of the house.

"DECLARATION AGAINST INTEREST" HEARSAY EXCEPTION

In order to fall under the "declaration against interest" exception to the hearsay rule, the party offering the statement must prove that the declarant is unavailable, that the statement was against the declarant's interest at the time it was made, and that the declarant was aware, at the time the statement was made, that it was against his interest. Boney v. Commonwealth, 16 Va.App. 638, 643, 432 S.E.2d 7, 10 (1993); 2 Charles E. Friend, The Law of Evidence in Virginia, § 18-12 (4th ed.1993). "The party offering the hearsay testimony has the burden of establishing the witness' 'unavailability.' Determining whether the offering party has met its burden and, thus, whether the declarant is 'unavailable,' is left to the trial court's discretion." Jones v. Commonwealth, 22 Va.App. 46, 50, 467 S.E.2d 841, 843 (1996) (citations omitted).

In Virginia, a declarant is unavailable if the party seeking to introduce the statement has been unable by diligent inquiry to locate the declarant. See Doan v. Commonwealth, 15 Va.App. 87, 101, 422 S.E.2d 398, 406 (1992); Friend, supra, § 18-9. 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. See Wise Terminal Co. v. McCormick, 107 Va. 376, 379, 58 S.E. 584, 585 (1907); Doan, 15 Va.App. at 102, 422 S.E.2d at 406.

Here, in order to prove that Henshaw was unavailable, the Commonwealth had the burden of showing that it exercised due diligence in attempting to locate Henshaw in order to have him testify at trial. The record does not indicate that the Commonwealth had a subpoena issued for Henshaw. The Commonwealth called two witnesses to prove that they had been diligent in attempting to locate Henshaw and have him "available" at trial. Officer Zohab testified that five "informants" had been searching for Henshaw for one month before trial. Zohab also testified that he had asked several officers who knew Henshaw to look for him. Additionally, Officer Zohab had information that Henshaw had been staying in several hotels on Richmond's northside, so he went to those hotels in an attempt to locate Henshaw, without success. On cross-examination, Officer Zohab admitted that he had not gone to Henshaw's last known address, but he testified that he knew that address to be "bad." The officer also acknowledged that he did not check with Henshaw's probation officer, even though he knew that Henshaw had been in jail within the last year for violating probation. Officer Zohab testified that he did not know whether Henshaw was on probation at the time he was trying to locate him for this case. Officer Zohab acknowledged that he had seen Henshaw within the last "two or three" months before trial.

Officer Hines testified that he went to Henshaw's last known address approximately three weeks before trial and was told that Henshaw no longer lived there. He also attempted to locate Henshaw by driving around Henshaw's former neighborhood at night.

After the trial judge heard Officers Zohab's and Hines' testimony, he ruled that the Commonwealth had exercised due diligence in trying to locate Henshaw. Thus, he held that Henshaw's hearsay statement describing the person from whom he had purchased cocaine, which was essentially identical to Officer Schnupp's description of the defendant, was admissible under the "declaration against interest" exception to the hearsay rule.

Due 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." Black's Law Dictionary 457 (6th ed.1990). See also State v. Armstrong, 160 Ariz. 159, 771 P.2d 889, 890 (Ct.App.1989) ("Although the question of due diligence necessarily turns upon the details of each case, the standard is constant: whether the state took reasonable steps to locate the accused based upon all of the information that it possessed."). Due diligence requires only a good faith, reasonable effort; it does not require that every possibility, no matter how remote, be exhausted. See, e.g., People v. Watkins, 209 Mich.App. 1, 530 N.W.2d 111, 113 (1995); Commonwealth v. Cottman, 327 Pa.Super. 453, 476 A.2d 40, 42 (1984). Thus, although the circumstances arguably may have required the police to contact Henshaw's probation officer in their efforts to locate him, that omission alone is not fatal to the determination that the Commonwealth exercised due diligence.

We hold, however, 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. When the evidence proves that the issuance of a subpoena would be of no avail because the witness is deceased,...