*1 VIRGINIA: Court of held at the Supreme June, of Richmond on day 9th
building Friday, 2000. Jr.,
Clifton S. Longshore, Appellant, against Record No. 992269 No. 1007-98-1
Commonwealth of Virginia, Appellee. briefs, record, consideration of the and
Upon of coun- argument sel, the Court is of that there is no error in the the Court of Appeals.
The circuit court the Commonwealth to introduce the permitted of an absent testimony witness into evidence that wit- by reading as contained in a of the prior testimony transcript on At that felony charge. dant called the and him about the questioned robbery occurred in the of a and fact that the witness did jail what he observed to at that time. report any jail personnel the Commonwealth Although issued a summons for the absent wit- court, ness to at the trial in the circuit the witness could not appear be located and was never served with the summons.
The defendant to the introduction of the absent witness’s objected testimony now claims that the for admitting of an unavailable testimony witness were not satisfied and that the use the absent witness’s at the defendant’s trial in circuit testimony court violated the defendant’s constitutional to confront the wit- nesses him.
We have held that the previously preliminary hearing testimony aof witness who is absent at a criminal trial be subsequent may admitted into evidence if the are conditions satisfied: unavailable; (2) that the witness is that the presently prior testimony (or witness was under oath in a form of affirmation that given sufficient); (3) legally accurately recorded or that the who seeks to relate the person unavailable can state matter unavailable detail; and in clarity that the
against whom the is offered was prior testimony present, repre- counsel, sented and was afforded the preliminary hearing *2 of cross-examination when the opportunity witness testified at the preliminary hearing. S.E.2d (1977). See also Fisher v. all these were present fulfilled. Specifi-
cally to the defendant’s regard to cross-examine the opportunity that, witness at the the record shows even defendant, the though rather than the called the wit- ness, the court did not limit the defendant’s of the wit- questioning Furthermore, ness nor did the Commonwealth to object any question. witness, since the defendant called the his were not limited questions the Commonwealth’s direct scope examination. In other words, the defendant tested the witness’s testimony to the full extent that he chose to do and he had more than a mere to opportunity Roberts, conduct the of cross-examination. equivalent See Ohio v. Thus, error, 448 U.S. we find no constitutional or otherwise, in the use of the absent permitting testi- mony trial of this felony charge.
It is ordered that the Circuit Court of the Chesapeake allow for $725 counsel a fee of appellant for services rendered on this appellant addition to counsel’s appeal, costs and neces- direct sary out-of-pocket expenses.
The Commonwealth shall recover of the the amount appellant counsel to paid him in this court-appointed represent proceeding, counsel’s costs and direct and the necessary out-of-pocket expenses, costs in this Court and in the courts below. WHITING,
SENIOR JUSTICE with whom JUSTICE HASSELL joins, dissenting.
I am unable to with the for the agree reasons. majority I do not think that the defendant “was afforded the opportunity cross-examination when the witness testified at the hear- as held ing,” because “the majority. my opinion, simply court did not limit the defendant’s of the witness nor did questioning the to does not mean that the object any question,” defendant had either or exercised the cross-examination the preliminary hearing. the witness’s “the defendant tested
Nor do I
agree
a mere
and he had more than
he chose to do
the full extent that
cross-examination,” as the
to conduct the equivalent
opportunity
asked a
indicates that the defendant
The record
concludes.
majority
during
leading
number of innocuous
questions
limited
of what he
the witness’s recollection
his direct examination regarding
failure to
and his
the encounter
during
observed
Moreover,
the record does
the alleged robbery.
promptly report
establish ulterior
sought
indicate that the defendant
the defendant or
for
blame on
unfairly casting
reasons
Roberts,
as in Ohio v.
448 U.S.
veracity
the witness’s
challenging
(1980), (2)
the witness in the
hearing by
impeach
cross-examination,
statements, a tool used in
Green,
399 U.S.
or
estab-
noted
California
a
a
of the Commonwealth in the form of
plea
lish
bias
favor
leniency regarding
charges
agreement
promise
pending
witness,
the absent
which
would be used as an
probably
of a cross-examination which I think should have been
important part
in the circuit court.
afforded
defendant
*3
Further, I
the Commonwealth’s claim that the defen-
would reject
dant had “the
to cross-examine the absent witness at
opportunity”
Commonwealth,
as in the case of Fisher v.
hearing
preliminary
808, 812,
798,
(as
217 Va.
232 S.E.2d
801
In Fisher
well as
Commonwealth,
25,
Va.
in
v.
218
Here, the absent witness had been called although dant at the suggests cross-examination was even though defendant’s right “protected” it.” The Commonwealth reasons that the “he did not himself of avail wit- defendant’s of cross-examination arose because absent to the defendant he “was adverse when clearly rob stated that he saw the defendant [the victim].” three that the Commonwealth cites its None of the cases supports case, for rea- contention. In each the witness was held to be adverse unfavorable to sons other than the fact that he or she gave testimony Va. the defendant. Trout v. 188 219, (1936) (Commonwealth its witness’s S.E. 220-21 surprised statements); because of her Nelson v. 909, 919, (Com- 153 Va. 150 S.E. hostile); monwealth’s adverse or Pendleton v. Com- witness proved monwealth, 676, 704, (1921) (court Va. 109 S.E. con- ducted direct examination of witness she because refused to discuss case with trial). Commonwealth’s Attorney prior rule in my is that a Virginia witness does become adverse because his or her is adverse simply case, injurious to the in calling party’s perhaps Rather, in an this case. adverse an usually oppos- ing or a who has a financial or other nonparty interest in the outcome of the or a witness who gives surprising Parrocha, adverse unexpected testimony. Butler 432-33, (1947); 43 S.E.2d Maxey App. reasons,
For I these would reverse the Court case Appeals remand the to that Court with directions to remand the case to court the circuit for a to be new trial conducted in accor- dance with the dissent. principles expressed
Justice no Lemons took the consideration or part decision this case.
This order certified shall be to the Court and to the Circuit and shall City Chesapeake be pub- lished the Virginia Reports. Copy,
A Teste: Beach, David B. Clerk Costs due the Commonwealth
by appellant Virginia: *4 $725.00 Attorney’s fee: plus expenses costs