Turner v. Commonwealth
| Decision Date | 07 June 2012 |
| Docket Number | Record No. 111563. |
| Citation | 726 S.E.2d 325 |
| Court | Virginia Supreme Court |
| Parties | Mario Lamar TURNER v. COMMONWEALTH of Virginia. |
OPINION TEXT STARTS HERE
Charles E. Haden, Hampton, for appellant.
Virginia B. Theisen, Senior Assistant Attorney General, (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Amicus Curiae: Virginia Indigent Defense Commission (David J. Johnson; Richmond, D.J. Geiger; Catherine French, on brief), in support of appellant.
Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE and MIMS, JJ., and LACY and KOONTZ, S.JJ.
Opinion by Justice WILLIAM C. MIMS.
In this appeal, we consider whether the circuit court properly held that a witness was unavailable to testify under the criteria established in Sapp v. Commonwealth, 263 Va. 415, 559 S.E.2d 645 (2002).
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Darnell Robinson was standing with a group of friends and high school football teammates when he was shot several times on the evening of September 12, 2009. The group included Robinson, Eric Poindexter, Ellis Butler (“Ellis”), Josh Butler (“Josh”), and Donnel Staton. Police recovered a 9–millimeter bullet and shell casing from the scene of the shooting. Forensic analysis later established that they were fired from a Ruger pistol recovered from the home of Mario Lamar Turner's grandmother.
Turner was subsequently indicted on one count each of aggravated malicious wounding, in violation of Code § 18.2–51.2, and use of a firearm during an aggravated malicious wounding, in violation of Code § 18.2–53.1. He was represented at his preliminary hearing by Brian P. Keeley, though Keeley subsequently withdrew and new counsel was substituted prior to trial. Turner was tried in a bench trial in the Circuit Court of the City of Newport News on May 4, 2010. At trial, Robinson testified that the group encountered Turner, who spoke with Poindexter, 15 to 20 minutes before the shooting. Robinson knew of Turner but did not have a personal acquaintance with him. Robinson did not see who shot him. He did not remember what Turner wore and did not remember seeing anyone with a gun.
Ellis testified that he too saw Turner that night. Ellis had only heard Turner's name and had never seen Turner before that night. Ellis saw Turner reach into his pocket shortly before shots rang out. Ellis did not remember where Turner was at the time of the shooting and was not sure what Turner had pulled from his pocket. On cross-examination, Turner questioned Ellis about his statement to police on the night of the shooting. Ellis confirmed that he had told police both that he could not identify the shooter and that he had not seen Turner shoot Robinson. Thereafter, during the course of antagonistic questioning, Ellis said he had seen Turner shoot Robinson:
Josh also testified that someone walked by the group and greeted them, but he did not know the person and could not remember how the person was dressed:
The Commonwealth established that Josh had given a recorded statement to the police and provided him a copy of it. He read the statement but said he still could not remember:
At the conclusion of Josh's testimony, the circuit court questioned him about his loss of memory:
Staton similarly testified that someone he did not know approached the group and spoke with Poindexter before the shooting. He also testified that he had seen someone wearing a white t-shirt and jeans with a gun in the area at the time of the shooting, but could not identify him:
The Commonwealth established that Staton, too, had given a recorded statement to police and provided him with a copy of it, which he read. The court also questioned him following his testimony:
Poindexter testified that he knew Turner because they were cousins. However, he said he had not seen Turner on the night of the shooting:
The Commonwealth established that Poindexter had testified under oath during Turner's preliminary hearing and provided Poindexter with a transcript of his testimony, which he read. It also established that, like the other witnesses, he had given a recorded statement to police and provided him with a copy of it, which he read. It then attempted to continue its examination:
....
Although it had questioned Josh and Staton regarding their claimed loss of memory, the court did not likewise question Poindexter. Rather, it merely thanked him and directed him to return to the witness room.
The Commonwealth thereafter moved that the court declare Poindexter unavailable as a witness and admit the transcript of his preliminary hearing testimony. Turner objected that the transcript had not been certified by the court reporter. He also objected that Poindexter was not unavailable; to the contrary, he was available and had in fact testified. The Commonwealth responded that the question went to the unavailability of the testimony, not of the witness.
The court, relying on the Court of Appeals' decision in Jones v. Commonwealth, 22 Va.App. 46, 467 S.E.2d 841 (1996), found Poindexter unavailable and ruled that it would admit the preliminary hearing transcript if the Commonwealth produced a certified copy. After a recess, the Commonwealth reported that it was unable to locate a certified copy or the court reporter who transcribed the preliminary hearing. The court then sustained Turner's objection to admitting it.
After the court ruled that the transcript could not be admitted, the Commonwealth called Keeley, Turner's counsel at the hearing, to testify about Poindexter's testimony. Turner objected that although Keeley no longer represented him, Keeley owed continuing duties to him and should not be permitted to testify. The court ruled that it would not permit Keeley to testify to anything encompassed by the attorney-client privilege but permitted him to testify about Poindexter's public testimony at the preliminary hearing. Keeley testified that the transcript accurately reflected Poindexter's testimony and that Poindexter had testified that he had seen Turner shoot someone with a gun, though Keeley could not recall the name of the victim.
Turner objected that Keeley's testimony was inadmissible hearsay. The court overruled the objection on the ground that Keeley's testimony merely provided the testimony of Poindexter, whom the court had already found to be unavailable.
Turner thereafter was convicted on both charges in the indictment. He appealed to the Court of Appeals, asserting among other things that the circuit court had erred by finding Poindexter to be unavailable and allowing Keeley to testify despite his ongoing duties to Poindexter. He also asserted that Keeley's testimony was based on the inadmissible transcript rather than his independent recollection of the preliminary hearing. The Court of Appeals affirmed Turner's convictions, Turner v. Commonwealth, 58 Va.App. 567, 570, 712 S.E.2d 28, 30 (2011), and we awarded Turner this appeal.
II. ANALYSIS
The threshold issue is whether the Court of Appeals erred in affirming the circuit court's ruling that Poindexter was an unavailable witness. A circuit court's ruling that...
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