Jamal R. Brent, etc. v Commonwealth

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COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia

JAMAL R. BRENT, s/k/a
JAMAL RAHIM BRENT

Vv. Record No. 2049-94-2 MEMORANDUM OPINION BY
JUDGE JERE M. H. WILLIS, OR.
COMMONWEALTH OF VIRGINIA FEBRUARY 6, 1996

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Joseph F. Spinella, Judge Designate

Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender; Office of
the Public Defender, on brief), for
appellant.

Margaret Ann B. Walker, Assistant Attorney

General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Jamal Rahim Brent was convicted in a bench trial of
malicious wounding and felonious use of a firearm. On appeal,
Brent contends that the trial court erred by refusing hearsay
evidence that a third party admitted shooting the victim. We
find no error and affirm the judgment of the trial court.

On February 23, 1994, at approximately 9:00 p.m., Douglas
Cheatham was shot five times outside his home. On the night of
the shooting, in a photographic lineup, and in court, he
identified Brent as the shooter. Cheatham testified that on the
night he was shot, he saw Brent standing in the alley beside his

neighbor's front yard. Cheatham had walked out onto his porch to

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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watch for his wife. 	As he walked through his gate towards the
street, he heard two shots, both of which struck him in the back.
As he fell, he was shot three more times, twice in the arm and
once in the chest. 	Cheatham testified that he tried to see who
shot him and that he saw Brent standing about four to five feet
away smiling at him.
Brent denied shooting Cheatham. 	He contends that Demartric
Gray fired the shots. 	He testified that Gray confessed to him
and to his cousins, Tarsha Brent and China Walker, that Gray shot
Cheatham. 	The trial court refused to admit this testimony,
ruling that it was inadmissible hearsay. 	Brent contends that the
statement is admissible as a declaration against penal interest
because Gray was unavailable.
After the defense rested, the trial court allowed it to
reopen its case and to call Gray as a witness. 	The court wanted
to compare the appearances of Gray and Brent. 	Gray testified
that he had heard about the shooting, that he had seen Cheatham
on Robinson Street before, but that he had no involvement in the
shooting. 	Defense counsel did not question Gray about his
alleged statement that he had shot Cheatham. 	After Gray
testified, the Commonwealth called Cheatham to testify. 	Once
again, Cheatham identified Brent as the shooter.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." 	Jackson v.

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Commonwealth, 13 Va. App. 599, 603, 413 S.E.2d 662, 665 (1992)
(citations omitted). 	"As a general rule, hearsay evidence is
incompetent and inadmissible." 	Neal v. Commonwealth, 15 Va. App.
416, 420, 425 S.E.2d 521, 524 (1992) (citing Coureas v. Allstate
Ins. Co., 198 Va. 77, 83, 92 S.E.2d 378, 383 (1956)). 	"The party
seeking to rely upon an exception to the hearsay rule has the
burden of establishing admissibility." 	Id. at 421, 425 S.E.2d at
524. A statement that is against the penal interest of the
declarant at the time it is made is admissible as a
"declaration against interest" exception to the hearsay
prohibition. 	However, before such a statement is
admitted, the party offering it must prove that the
declarant is unavailable to testify at trial.
Ferguson v. Commonwealth, 16 Va. App. 9, 11, 427 S.E.2d 442, 444
(1993) (citations omitted).
Demartric Gray was not unavailable as a witness at Brent's
trial. 	When Brent moved for the admission of the expected
hearsay testimony, he failed to prove that Gray was unavailable.
Gray had not taken the witness stand and had not refused to
testify. 	A witness is unavailable if he is not physically
present or he takes the stand and refuses to testify. 	See Morris
v. Commonwealth, 229 Va. 145, 326 S.E.2d 693 (1985). 	A refusal
to testify cannot be assumed. 	See Scaggs v. Commonwealth, 5 Va.
App. 1, 5, 359 S.E.2d 830, 832 (1987). 	Furthermore, Gray was
called as a witness and testified without invoking his Fifth
Amendment privilege against self-incrimination. 	Thus, he was not
unavailable and his statement did not fall within the declaration

against interest exception to the hearsay rule.

We affirm the judgment of the trial court.

Affirmed.