749 S.E.2d 544
Va. Ct. App.2013Background
- On March 18, 2011, Ron James was beaten and robbed in Richmond of $37,000; police identified Jared Benjamin Bailey as one of the perpetrators.
- Commonwealth presented evidence that James’s ex-girlfriend, Remia McPherson, communicated with Bailey and another man before the robbery and that Bailey was wearing James’s watch when arrested.
- Bailey did not testify at trial; defense called Shannon Dougherty to relate statements Bailey made to her and to describe his role as a drug dealer and possession of firearms.
- Dougherty would have testified that Bailey characterized the incident as a failed drug transaction in which the contact pulled a gun.
- Trial court excluded Dougherty’s testimony as inadmissible hearsay under the statement-against-penal-interest exception; Bailey appealed on the ground that his statements were admissible because they were against his penal interest and he was unavailable.
- The Court of Appeals affirmed, holding that a defendant’s invocation of the Fifth Amendment does not render him "unavailable" for purposes of admitting his own out-of-court statements under the statement-against-penal-interest exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant’s invocation of the Fifth Amendment qualifies as "unavailability" under the statement-against-penal-interest hearsay exception | The Commonwealth argued the declarant must be unavailable for the exception to apply; Bailey claimed he was unavailable | Bailey argued his invocation of the Fifth made him unavailable so his out-of-court statements (as against penal interest) could be admitted via Dougherty | Held: A defendant cannot create his own unavailability by invoking the Fifth; therefore he was not unavailable and the evidence was properly excluded |
Key Cases Cited
- Rankins v. Commonwealth, 31 Va. App. 352 (statement‑against‑interest exception requires unavailability and corroborating reliability)
- Ayala v. Aggressive Towing & Transp., Inc., 276 Va. 169 (clarifying requirements for hearsay exceptions)
- Perry v. Commonwealth, 280 Va. 572 (appellate courts may affirm on any ground not requiring new factual findings)
- Bennett v. Commonwealth, 33 Va. App. 335 (unavailability is within trial court’s discretion; list of recognized unavailability situations)
- Morgan v. Commonwealth, 50 Va. App. 369 (federal jurisprudence can guide unavailability analysis)
- Doan v. Commonwealth, 15 Va. App. 87 (catalog of unavailability circumstances)
- Boney v. Commonwealth, 16 Va. App. 638 (recognizing Fifth Amendment invocation renders a witness unavailable in some contexts)
- Lilly v. Commonwealth, 255 Va. 558 (discussing admissibility principles for hearsay exceptions)
- United States v. Bollin, 264 F.3d 391 (4th Cir.) (defendant invoking Fifth does not create unavailability under Fed. R. Evid. 804)
- United States v. Kimball, 15 F.3d 54 (5th Cir.) (defendant may not use Fifth Amendment as both sword and shield)