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Walton v. Commonwealth

Court of Appeals of Virginia

March 30, 1999

JEREMY SHAWN WALTON
v.
COMMONWEALTH OF VIRGINIA ROBERT SABB COMMONWEALTH OF VIRGINIA Record No. 2472-97-1

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON. Wilford Taylor, Jr., Judge.

Charles E. Haden for appellants.

Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on briefs), for appellees.

Present: Benton, Bray, Judges and Overton, Senior Judge.

MEMORANDUM OPINION [1]

RICHARD S. BRAY, JUDGE.

Jeremy Shawn Walton and Robert Sabb (appellants) were convicted in a joint trial for robbery. On appeal, each contends that the court erroneously allowed a Commonwealth witness to invoke the Fifth Amendment, found that he was, therefore, " unavailable" to testify, and admitted his extrajudicial statement to police into evidence. Appellants also complain that the court erred in denying a continuance to permit them to produce a witness that failed to appear at trial and refusing to allow a defense witness to testify. Finding no error, we affirm the convictions.

I.

The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to disposition of the appeal. " On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987).

On June 10, 1997, Jimmy Baggett, a white male, robbed a branch of the First Union Bank. Tara Ramirez, a teller, testified that Baggett entered the bank, " came up to one of the desks and was writing." [2] He then approached another teller, who, " for some reason, " asked Baggett for identification. Baggett then " went back outside" briefly, returned, entered Ramirez's line and presented a note demanding $ 350. The note also threatened Ramirez that Baggett " was pointing a gun at [her], " and she noticed he was " holding [something] underneath his shirt." Ramirez gave Baggett the money and watched him exit the bank and enter " a gray, big car, " parked nearby and occupied by " four or five black males."

Officer Jimmy Forbes was alerted to the robbery and soon located the car described by Ramirez, stopping it at a service station. Police arrested and questioned the occupants, four black males, including appellants, and a black female. All denied involvement in the offense. Baggett was arrested a short distance away, waived his Miranda rights, and provided the disputed statement to Forbes. In searches incidental to the arrests, police recovered $ 50 and $ 157 in cash from appellants Walton and Sabb, respectively, a screwdriver from the vehicle, and a " practice [robbery] note" from Baggett's sock.

At trial, Baggett was called as a Commonwealth witness and, during initial questioning, acknowledged an acquaintance with appellants " through drug dealing." However, when the prosecutor asked if Baggett was with appellants on the day of the robbery, he invoked the Fifth Amendment and refused to answer questions related to the offense. After Baggett responded similarly to cross-examination, the court declared him an unavailable witness. The Commonwealth then recalled Officer Forbes and, over appellants' objections, he repeated Baggett's earlier statement which implicated appellants in a scheme to coerce Baggett to rob the bank and pay a drug debt to appellant Walton.

II.

" It is generally recognized that . . . 'declarations against [penal] interest are admissible as an exception to the hearsay rule because it is felt that a person will not usually make statements damaging to his own interests unless such statements are true.'" Randolph v. Commonwealth, 24 Va.App. 345, 355-56, 482 S.E.2d 101, 106 (1997) (citation omitted). Accordingly, [a] third party's statement is admissible as an exception to the hearsay rule if: (1) the declarant is unavailable, (2) the statement was against the declarant's interest at the time it was made, and (3) the declarant was aware at the time the statement was made that it was against his interests to make it. Furthermore, the declaration [by the unavailable witness] must be shown to be reliable. [3]

Raia v. Commonwealth, 23 Va.App. 546, 550, 478 S.E.2d 328, 330 (1996) (citations omitted). " 'Where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the [Sixth Amendment] confrontation clause is satisfied.'" Id. at 551, 478 S.E.2d at 330 (citation omitted).

Thus, " '" once it has been established that a third-party confession has been made, the crucial issue is whether the content of the confession is trustworthy." '" Randolph, 24 Va.App. at 356, 482 S.E.2d at 106 (citations omitted). The " '" determination of this issue turns upon whether . . . the case is one where 'there is anything substantial other than the bare confession to connect the declarant with the crime'" '" and rests with the sound discretion of the trial court. Id.

Here, Baggett's statement implicated him in a bank robbery and, therefore, was against his penal interest, irrespective of the sufficiency of the statement to convict him of the offense. See Chandler v. Commonwealth, 249 Va. 270, 279, 455 S.E.2d 219, 224, cert. denied, 516 U.S. 889, 133 L.Ed.2d 162, 116 S.Ct. 233 (1995). Moreover, Baggett admitted involvement in unlawful drug trafficking, also clearly contrary to his penal interest. See 2 Charles E. Friend, The Law of Evidence in Virginia § 18-12 (4th ed. 1996). Additionally, Baggett was identified as the robber and fled in an automobile occupied by appellants and stopped by police near the scene shortly after the offense. The screwdriver used in the offense was found in the car, appellants admitted Baggett's indebtedness to Walton for drug purchases, and cash was recovered from appellants, all consistent with Baggett's statement to police.

Such evidence, together with other circumstances, provided " sufficient indicia of reliability to support the trustworthiness of [Baggett's] statement." Raia, 23 Va.App. ...


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