Turner v. Com.
726 S.E.2d 325
| Va. | 2012Background
- Turner was tried in a bench trial for aggravated malicious wounding and use of a firearm during the offense arising from a Sept. 12, 2009 shooting that left Darnell Robinson shot multiple times.
- For trial, witnesses included Robinson, Ellis Butler, Josh Butler, Donnel Staton, and Poindexter; the Ruger pistol linked to Turner’s grandmother’s home was implicated by forensic analysis.
- Robinson testified he did not see the shooter and could not identify Turner; Ellis testified inconsistently about Turner and possession of a gun.
- Josh and Staton claimed memory loss or inability to recall key details despite reviewing police statements; Poindexter similarly failed to recall relevant details.
- The Commonwealth sought to admit Poindexter’s preliminary hearing testimony as unavailable witness testimony; the circuit court found Poindexter unavailable but could not certify a transcript.
- Keeley, Turner’s former preliminary hearing counsel, testified about Poindexter’s prior testimony; the court admitted Keely’s testimony over objection, leading to Turner’s convictions that were challenged on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court abused its discretion in finding Poindexter unavailable | Turner | Turner | Yes; abuse of discretion for not testing bona fides of memory loss |
| Whether admitting Poindexter’s prior testimony via Keeley was harmless error | Turner | Commonwealth | No; not harmless given inconsistent direct evidence against Turner |
Key Cases Cited
- Sapp v. Commonwealth, 263 Va. 415 (2002) (unavailability exception for prior testimony; need inquiry into memory loss)
- Longshore v. Commonwealth, 260 Va. 3 (2000) (framework for admissibility of unavailable witness testimony)
- Jones v. Commonwealth, 22 Va. App. 46 (1996) (unavailability-equivalent theory for memory loss at trial)
- Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346 (2011) (trial court must weigh proper factors; deference for discretion with correct considerations)
- Angel v. Commonwealth, 281 Va. 248 (2011) (non-constitutional error—harmless only if overwhelming evidence)