Turner v. Commonwealth
58 Va. App. 567
| Va. Ct. App. | 2011Background
- Turner was convicted in a bench trial of aggravated malicious wounding and use of a firearm during a felony, with prison terms; on appeal he challenges Keeley's trial testimony as former counsel.
- Robinson, a Warwick High School student, was shot on September 12, 2009 in Newport News; Turner, Poindexter, Butler, and Staton were among witnesses; Turner allegedly shot Robinson after speaking with Poindexter.
- Police recovered a Ruger 9mm pistol and a Russian revolver at Turner's grandmother's home; ballistic evidence linked the 9mm pistol to shell casings near the scene and to bullets found with Robinson.
- At trial, Keeley, Turner's former defense counsel, testified about Poindexter's preliminary-hearing testimony; the court ruled on unavailability and admitted prior sworn testimony as an exception to hearsay.
- The circuit court determined Poindexter was unavailable due to present memory loss; it attempted to obtain an authenticated transcript but could not certify it under Code § 19.2-165, and Keeley testified using the transcript as memory refreshment.
- Turner objected to Keeley's testimony on duties of loyalty and on hearsay grounds; the court admitted Keeley's testimony as prior sworn testimony of an unavailable witness, and Turner was convicted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Poindexter was properly found unavailable | Turner argues Poindexter was not unavailable, merely memory-impaired. | Turner contends the lack of memory made Poindexter unavailable for purposes of the prior-testimony exception. | Yes, Poindexter was unavailable; testimony admitted under Sapp |
| Duty of loyalty of former counsel | Keeley violated loyalty by testifying against Turner as a prosecution witness. | Keeley owed no ongoing loyalty to Turner in this context; testimony is admissible if non-confidential and public. | Keeley could testify; no reversible error |
| Admissibility of Keeley's testimony as hearsay | Keeley's recitation of Poindexter's prior statements was hearsay and not properly admissible. | The testimony falls within the prior-sworn-testimony exception to hearsay. | Admissible as prior sworn testimony of an unavailable witness |
| Clarity and detail requirement under Sapp | Keeley could not clearly and in detail recount Poindexter's testimony from the transcript. | Keeley testified with reasonable accuracy after refreshing memory with the transcript. | Sapp requirement satisfied; admissible |
| Harmless error | Unreliable hearsay evidence may have supported Turner’s conviction. | No harmless-error analysis needed because the ruling was correct. | Affirmed; no harmless-error analysis required |
Key Cases Cited
- Holloway v. Commonwealth, 57 Va.App. 658 (Va. Ct. App. 2011) (standard of review for evidence on appeal)
- Doan v. Commonwealth, 15 Va.App. 87 (Va. Ct. App. 1992) (unavailability and testimony of former witnesses)
- Sapp v. Commonwealth, 263 Va. 415 (Va. 2002) (criteria for admissibility of prior sworn testimony)
- Jones v. Commonwealth, 22 Va.App. 46 (Va. Ct. App. 1996) (memory loss can render a witness unavailable)
- Longshore v. Commonwealth, 260 Va. 3 (Va. 2000) (standard for prior testimony admissibility)
- Burton v. Oldfield, 195 Va. 544 (Va. 1954) (foundational rule for admissibility of former testimony)