Darrell Dewon Jones, etc. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bray and Annunziata
Argued at Norfolk, Virginia
DARRELL DEWON JONES, S/K/A
DARRELL DEVON JONES
v. 	Record No. 2605-94-1 	OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA 	MARCH 12, 1996
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John E. Clarkson, Judge
Robert McL. Smith, III, for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Following a bench trial on September 13, 1994, the
appellant, Darrell Dewon Jones was convicted of first degree
murder and use of a firearm in the commission of a felony. 	On
December 13, 1994, the trial court sentenced Jones to life
imprisonment for the murder and two years for use of a firearm.
Jones appeals his convictions, contending that the trial court
erred in declaring Michael Ray Brown an "unavailable" witness
and, on that basis, admitting a transcript of Brown's prior
testimony. 	Finding no error, we affirm the convictions.
At approximately 2:50 a.m. on the morning of July 3, 1992,
Raymond A. Watson died as a result of a gunshot wound to his
back. 	Less than one hour before, paramedics removed Watson from
his burgundy station wagon, which rested partially on the median
strip near the 6200 block of Chesapeake Boulevard in Norfolk.

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Watson's car came to rest on the median after skipping a curb
while leaving an adjacent parking lot. 	The fatal shot was fired
from a .22-caliber firearm at a range of less than eighteen
inches.
The police arrested Jones and charged him with Watson's
murder. 	Jones executed a waiver of rights form and admitted
being present at the scene of the crime. 	He told the police he
saw another individual, Ben Tavers, shoot Watson while Watson sat
in a dark-colored station wagon looking for drugs to buy, and
that Watson then drove out of the lot over the curb. 	The police
interviewed at least two other men, Christopher Johnson and
Michael Ray Brown regarding the crime.
At the preliminary hearing, Brown testified as an eyewitness
to the crime. 	He testified that on July 2, 1992 he was "hanging
around" selling drugs for Jones in an area near the 6300 block of
Chesapeake Boulevard in Norfolk. 	That afternoon, Brown saw Jones
purchase a .22-caliber gun from a person identified as "Chris."
Jones indicated that he intended to shoot the first "dope smoker"
who came through the area. 	Brown testified that, around midnight
that evening, he saw Jones and Ben Tavers approach a car, which
had pulled into the area. 	Brown saw Jones fire two shots at the
car's occupant from a range of approximately two to three feet.
Brown further testified that when the driver attempted to flee,
the car hit the curb and came to rest in the median strip on
Chesapeake Boulevard. 	As the car drove away, Jones fired a third

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shot and ran. 	Brown stated that, later that morning, Jones
admitted to him that he had shot Watson in the back. 	Jones was
thereafter indicted for Watson's murder.
At Jones' trial, the Commonwealth called both Johnson and
Brown as witnesses. 	Both men testified that they did not
remember either the incident or having spoken with the police.
Brown further claimed that he did not know Jones and that he had
no memory of the events leading to Watson's death. 	In response
to the Commonwealth's questions, Brown asserted his Fifth
Amendment right against self-incrimination. 	The Commonwealth
then granted immunity to Brown, but Brown claimed that he did not
want to testify. 	Brown continued to maintain that he could not
remember the crime. 	He also maintained that he could not
remember his statement to the police, or testimony at the
preliminary hearing.
The trial court concluded that Brown's inability to remember
his preliminary hearing testimony rendered him an "unavailable"
witness. 	Accordingly, the court allowed the Commonwealth to read
into evidence Brown's testimony from the preliminary hearing,
both to impeach Brown and as substantive evidence of Jones'
guilt.
It is well established that "[t]estimony given at a former
trial is admissible in evidence as an exception to the hearsay
rule if certain requirements are met." 	Doan v. Commonwealth, 15
Va. App. 87, 100, 422 S.E.2d 398, 405 (1992) (quoting Charles E.

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Friend, The Law of Evidence in Virginia § 232 (3d ed. 1988)).
Jones concedes that the Commonwealth met all of the requirements
of the former testimony exception to the hearsay rule, except its
burden to show that the declarant, Brown, was "unavailable" at
the time of the trial. 	The reliability of Brown's former
testimony is not at issue.
A declarant's "unavailability" is a prerequisite to the
admission into evidence of the declarant's former testimony
during the guilt phase of a trial. 	See Doan, 15 Va. App. at 100
n.8, 422 S.E.2d at 405 n.8 (distinguishing Stockton v.
Commonwealth, 241 Va. 192, 204-05, 402 S.E.2d 196, 203, cert.
denied, 112 S. Ct. 280 (1991)).1 The party offering the hearsay
testimony has the burden of establishing the witness'
"unavailability." 	See, e.g., Lewis v. Commonwealth, 18 Va. App.
5, 8-9, 441 S.E.2d 47, 49 (1994). 	Determining whether the
offering party has met its burden and, thus, whether the
declarant is "unavailable," is left to the trial court's
discretion. 	Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660,
665 (1954). 	Whether a witness' lack of memory renders the
witness "unavailable" is an issue of first impression in
Virginia.
In Doan, the Court enumerated seven conditions under which a
1
In Stockton, the Supreme Court concluded that
unavailability was not required where the transcript was read
during sentencing phase "for the limited purpose of informing the
jury of the nature of the offense and the circumstances of the
crime."

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declarant has been deemed unavailable:
(1) The declarant is dead. (2) The declarant
is too ill to testify. (3) The declarant is
insane. (4) The declarant is absent from the
state and the party is unable to obtain the
declarant's deposition. (5) The party has
been unable by diligent inquiry to locate the
declarant. (6) The declarant cannot be
compelled to testify. (7) The opposite party
has 	caused the declarant's absence.
15 Va. App. at 101, 422 S.E.2d at 406 (quoting Charles E. Friend,
The Law of Evidence in Virginia § 231 (3d ed. 1988)).2 Jones
argues that because a declarant's lack of memory is not one of
the conditions listed in Doan, Brown was not "unavailable."
However, nothing in Doan suggests that it established an
exhaustive list of the circumstances under which a declarant may
be deemed "unavailable" or that it intended to constrain the
Virginia Supreme Court's expansive statement of the rule set
forth in Wise Terminal Co. v. McCormick, 107 Va. 376, 58 S.E. 584
(1907). 	That rule, which is restated in Doan, states that a
witness' "unavailability" is established if the court is
satisfied that "a sufficient reason is shown why the original
witness is not produced." 	Doan, 15 Va. App. at 100, 422 S.E.2d
at 405 (quoting Gray v. Graham, 231 Va. 1, 5, 341 S.E.2d 153, 155
(1986)); Wise Terminal, 107 Va. at 379, 58 S.E. at 585; Burton v.
Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 664 (1954)
2 Professor Friend's list of conditions is based on Virginia
Supreme Court decisions in which the issue of "unavailability"
was determined in light of the particular circumstances of the
case.

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(unavailability shown where declarant is "dead, insane, or beyond
the jurisdiction of the court or on diligent inquiry cannot be
found or . . . [where] some other circumstance exists") (emphasis
added); Director General v. Gordon, 134 Va. 381, 390, 114 S.E.
668, 670 (1922).3
In this case, the trial court did not abuse its discretion
in finding that Brown's memory loss at trial, whether real or
feigned, rendered him unavailable. 	Brown's testimony at trial
was not forthcoming, despite the Commonwealth's repeated
questions, its attempt to refresh his memory, and its grant of
immunity. 	Brown admitted that he simply did not want to testify
and ultimately could not be compelled to "remember." 	Thus,
although Brown appeared in court and testified to his present
lack of memory, he was "unavailable" for purposes of the
exception. 	In such cases, the focus of the inquiry is not the
unavailability of the witness but the unavailability of the
testimony. 	See Morris v. Commonwealth, 229 Va. 145, 149, 326
S.E.2d 693, 695 (1985) (quoting Hines v. Commonwealth, 136 Va.
728, 745, 117 S.E. 843, 848 (1923)) ("If the declarant 'were
3 Recognizing the distinction to be made between the
potential scope of the rule governing the determination of
"unavailability" and the list of particular factual circumstances
or conditions which the Virginia Supreme Court found met the
rule's requirements, Professor Friend comments that "[i]t is
uncertain as to what constitutes `unavailability' for [the]
purposes of the prior testimony exception. . . . Whether other
types of unavailability will satisfy the requirement is not
clear." 	Charles E. Friend, The Law of Evidence in Virginia
§ 18-10 (4th ed. 1993).

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present and testifying, but denying that he made [the statement],
then his own original [statement] would not be available'"); see
also 29 Am. Jur. 2d Evidence § 695 (1994).
Jones also argues that admitting Brown's prior testimony
deprived him of his constitutional right to confront Brown. 	An
accused's right to confrontation is satisfied with respect to the
admission of prior testimony when the prior testimony was given
under oath in an adversary judiciary proceeding, such as a
preliminary hearing, at which the accused had an adequate
opportunity to cross-examine the witness on the issues which
later develop at trial. 	Fisher v. Commonwealth, 217 Va. 808,
813, 232 S.E.2d 798, 801-02 (1977); Lassiter v. Commonwealth, 16
Va. App. 605, 614, 431 S.E.2d 900, 905 (1993). 	Here, Jones
cross-examined Brown at the preliminary hearing concerning
Brown's identification of Jones as the killer. 	For this reason,
Jones' Sixth Amendment right of confrontation was met.
Accordingly, Jones' convictions are affirmed.
Affirmed.