                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia


CLIFTON S. LONGSHORE, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 1007-98-1                  JUDGE NELSON T. OVERTON
                                                JULY 13, 1999
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                Robert S. Wahab, Jr., Judge Designate

            Peter J. Jankell for appellant.

            H. Elizabeth Shaffer, Assistant Attorney
            General (Mark L. Earley, Attorney General,
            on brief), for appellee.


     The trial judge convicted Clifton S. Longshore, Jr. of

robbery.   On this appeal, Longshore contends the trial judge erred

by permitting the Commonwealth to introduce into evidence the

preliminary hearing testimony of a witness who failed to appear at

trial.   Specifically, he argues that the witness' testimony was

hearsay and that the admission of the testimony violated his Sixth

Amendment right to confront the witness.      We disagree and affirm

the conviction.

                                 I.

     Clifton S. Longshore, Jr. was arrested for robbing Travis

Bundy.   At the preliminary hearing in the general district court,

    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Bundy testified that the robbery occurred while he and Longshore

were in a jail cell.   Longshore's attorney called as a witness

Thomas Lupton, who had been detained in the same jail cell.      At

the conclusion of the hearing, the general district court judge

found probable cause to believe the robbery occurred.   A grand

jury indicted Longshore for the robbery.

     Longshore's trial in the circuit court was scheduled for June

1997 and then continued to August 1997.    Prior to the August

trial, the prosecutor sought to obtain a ruling in limine

permitting the Commonwealth to use at trial the preliminary

hearing testimony of Lupton, whom the prosecutor claimed was

unavailable to testify.   In support of the motion, the prosecutor

called as a witness the detective who investigated the robbery

complaint.   The detective testified that he spoke with Lupton a

month prior to the preliminary hearing and on the day of the

preliminary hearing.   When Lupton failed to appear for the June

trial, the detective called Lupton's residence and spoke with

Lupton's mother, who said Lupton no longer lived there.   Lupton's

mother said she would try to get a message to Lupton.   After a

period of time with no response, the detective again called

Lupton's mother who said she had not had any recent contact with

Lupton and did not know where he was.

     Contacting the Department of Motor Vehicles and the postal

inspector, the detective learned that Lupton had not changed his

address with those agencies.   The detective then located a pager

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number associated with Lupton, an employment address, and an

employment telephone number.   The person who responded to the page

did not know Lupton.   The person who answered the telephone at the

employment number told the detective Lupton no longer worked there

and left no forwarding address.   On cross-examination, the

detective testified he had checked several local jails but had not

contacted the Department of Corrections.   He did not inquire of

other jail facilities outside the local area.

     Expressing a concern "about the reliability" of Lupton's

preliminary hearing testimony and proof of "due diligence," the

trial judge granted a short recess to give the prosecutor

additional time to locate Lupton.   After a recess of several

hours, the detective testified that he had checked all the local

jails.    The prosecutor represented that additional checks had been

performed unsuccessfully through Lupton's "criminal history"

record.    The prosecutor also represented that she had asked Lupton

to keep in touch with her after the preliminary hearing.    Over

Longshore's objection, the trial judge ruled that Lupton's

preliminary hearing testimony was admissible as "an exception to

the hearsay rule."

     At trial, which immediately followed the in limine ruling,

Bundy testified that on October 15, 1996, he was in the jail's

holding cell after having been arrested for misdemeanor

shoplifting.   Longshore and ten other men were also in the cell.

After midnight, Longshore approached Bundy, commented on Bundy's

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shoes, and asked if he could have them.   Bundy refused to give

them to Longshore.   Later, Longshore again approached Bundy and

asked how much Bundy's ring cost and asked if he could have it.

When Bundy refused, Longshore grabbed him around the neck,

demanded Bundy's ring and bracelet, and threatened to hit Bundy's

head against the bars if Bundy did not comply.   Bundy gave

Longshore both the ring and a bracelet.   After Bundy was released

from jail, he reported the robbery.

     Over Longshore's objection to Lupton's preliminary hearing

testimony, the judge allowed as evidence Lupton's testimony as

recorded in the transcript of the preliminary hearing.    Testifying

on direct examination as Longshore's witness, Lupton said he was

sitting next to Bundy in the holding cell when Longshore

approached Bundy and "demanded all of his stuff, the money and the

ring on [Bundy's] finger."   According to Lupton's testimony,

Longshore walked away, then returned to Bundy, demanded Bundy's

shoes, and threatened to "beat [Bundy] up."   On cross-examination

by the Commonwealth, Lupton said Longshore "got a chain from . . .

Bundy . . . [and] took the ring off of Bundy's finger."    Lupton

also testified that a police officer later approached him and

asked if he had seen the incident.

     At the conclusion of the Commonwealth's case-in-chief in the

circuit court, Longshore offered the testimony of several

witnesses, including two men who were in the same holding cell

with Bundy and Longshore.    Christopher Bower testified that he did

                                - 4 -
not see Longshore take jewelry from anyone.    He testified that he

was "mostly, trying to sleep" but was able to hear "mostly

everything that was going on."    James Morris also testified that

he did not see anyone take jewelry from anyone else.

     The trial judge convicted Longshore of robbery.    This appeal

followed.

                                  II.

     "It is well established that '[t]estimony given at a former

trial is admissible as an exception to the hearsay rule if certain

requirements are met.'"   Jones v. Commonwealth, 22 Va. App. 46,

50, 467 S.E.2d 841, 843 (1996) (citation omitted).   These

requirements are as follows:

            "(1) The original witness must be
            unavailable. (2) The witness who is now
            unavailable must have been testifying under
            oath (or affirmation) at the former trial.
            (3) The issues must be substantially the
            same in both trials. (4) The party against
            whom the hearsay testimony is now offered
            (or his privy in interest) must have been a
            party in the former trial. (5) The witness
            who is now testifying as to what was said at
            the former trial must be able to do so with
            reasonable accuracy."

Doan v. Commonwealth, 15 Va. App. 87, 100, 422 S.E.2d 398, 405

(1992) (citation omitted).     The party offering the testimony

bears the burden of establishing the witness' unavailability.

See Jones, 22 Va. App. at 50, 467 S.E.2d at 843.     Longshore

contends the Commonwealth failed to meet that burden.




                                 - 5 -
     "'[A] declarant is unavailable if the party seeking to

introduce the statement has been unable by diligent inquiry to

locate the declarant.'"   Cooper v. Commonwealth, 26 Va. App.

537, 542, 496 S.E.2d 77, 79 (1998) (citation omitted).    We have

held that reasonable or "[d]ue diligence is that amount of

prudence 'as is properly to be expected from, and ordinarily

exercised by, a reasonable and prudent man under the particular

circumstances.'"   McDonnough v. Commonwealth, 25 Va. App. 120,

128, 486 S.E.2d 570, 574 (1997) (citation omitted).    This

standard "requires only a good faith, reasonable effort; it does

not require that every possibility, no matter how remote, be

exhausted."   Id. at 129, 486 S.E.2d at 574.    Furthermore, "it is

well established that the sufficiency of the proof to establish

the unavailability of a witness is largely within the discretion

of the trial [judge], and, in the absence of a showing that such

discretion has been abused, will not be interfered with on

appeal."   Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660,

665 (1954).

     The evidence at the pretrial hearing established that prior

to Longshore's preliminary hearing Lupton lived with his family

at an address on Fourth Street in Chesapeake.    Lupton appeared

at the preliminary hearing in response to the Commonwealth's

subpoena sent to that address.    Prior to Longshore's scheduled

trial in June, the Commonwealth issued a subpoena for Lupton

which was posted at the same address in Chesapeake.     See

                                 - 6 -
McDonnough, 25 Va. App. at 129, 486 S.E.2d at 574 ("hold[ing]

. . . that due diligence requires, at a minimum, that a party

attempt to subpoena the witness or provide a reasonable

explanation why a subpoena was not issued").   However, Lupton

failed to appear at court in response to that subpoena.   When

the trial was continued, the detective twice called Lupton's

home address and spoke with Lupton's mother in unsuccessful

attempts to locate Lupton.   The detective contacted the postal

service, the Department of Motor Vehicles, penal facilities, and

Lupton's former employer.    All these attempts proved

unsuccessful.

     Based on this evidence, the trial judge was sufficiently

apprised of the Commonwealth's efforts and ruled that reasonable

or due diligence had been exercised.    Unlike the circumstances

in Doan, where the moving party made no showing of any attempt

to secure the witness, see 15 Va. App. at 101, 422 S.E.2d at

406, the Commonwealth in this instance made a sufficient showing

of its efforts.   We, therefore, conclude that the trial judge's

finding that the Commonwealth exercised "reasonable [or due]

diligence" did not constitute an abuse of discretion.

                                III.

     Longshore also argues that because the preliminary hearing

is held for "a substantially different purpose than to establish

if the accused committed a crime," the prior testimony exception

is not applicable to testimony given at a preliminary hearing.

                                - 7 -
We disagree.    Numerous cases in Virginia have held that

testimony is admissible at trial if it was given at a

preliminary hearing by a witness who is later unavailable at

trial, provided all of the constitutional and hearsay

constraints are properly addressed.     See e.g., Shifflett v.

Commonwealth, 218 Va. 25, 235 S.E.2d 316 (1977); Fisher v.

Commonwealth, 217 Va. 808, 232 S.E.2d 798 (1977); Jones, 22 Va.

App. 46, 467 S.E.2d 841.

     Longshore contends these cases are distinguishable because

Lupton was a defense witness.   He argues that he did not have

the opportunity to cross-examine or impeach Lupton, as would be

the case at trial.   However, the record does not establish that

Longshore was denied the opportunity to declare Lupton a hostile

witness once Lupton began corroborating Bundy's testimony and to

vigorously examine Lupton once his testimony became adverse.

See Code § 8.01-403.    We see no reason to deviate from the rule

that testimony from a preliminary hearing may, under these

circumstances, be admitted into evidence at a subsequent trial.

                                 IV.

     Longshore further claims that the admission of Lupton's

preliminary hearing testimony at trial violated his

constitutional right "to be confronted with the witnesses

against him."   U.S. Const. amend. VI; See e.g. Pointer v. Texas,

380 U.S. 400, 406-07 (1965) (ruling that "a major reason

underlying the constitutional confrontation rule is to give a

                                - 8 -
defendant charged with crime an opportunity to cross-examine the

witnesses against him").   However, we note that the Supreme

Court has held that the admission of an unavailable witness'

prior trial testimony does not necessarily violate the

Confrontation Clause.   See Mattox v. United States, 156 U.S. 237

(1895).   This is true so long as the moving party demonstrates

(1) that the declarant is "unavailable," and (2) that the

declarant's statement "bears adequate 'indicia of reliability.'"

Ohio v. Roberts, 448 U.S. 56, 66 (1980).

     Unavailability, for constitutional purposes, requires a

showing that "the prosecutorial authorities have made a

good-faith effort to obtain [the declarant's] presence at

trial."   Barber v. Page, 390 U.S. 719, 724-25 (1968).    "The

lengths to which the prosecution must go to produce a witness

. . . is a question of reasonableness."    California v. Green,

399 U.S. 149, 189 n.22 (1970) (Harlan, J., concurring); Roberts,

448 U.S. at 74.

     "Reliability can be inferred without more in a case where

the evidence falls within a firmly rooted hearsay exception [or

upon] . . . a showing of particularized guarantees of

trustworthiness."   Roberts, 448 U.S. at 66 (footnote omitted).

The prior trial testimony of a witness who was unavailable to

testify at a subsequent trial has been held to be sufficiently

reliable if "there was an adequate opportunity to cross-examine

[the witness] at the first trial, and counsel for [the

                               - 9 -
defendant] availed himself of that opportunity."       Mancusi v.

Stubbs, 408 U.S. 204, 216 (1972).

     Applying these principles, we have held that "[o]nly when

[a] witness' unavailability is proved, the issues and parties

are the same, and complete and adequate cross-examination has

been afforded on the issues, may testimony from another hearing

be admitted at a subsequent trial."      Lassiter v. Commonwealth,

16 Va. App. 605, 614, 431 S.E.2d 900, 906 (1993).      We believe

the record proves this standard has been met.     The trial judge

properly found from the evidence that the Commonwealth exercised

due diligence in its attempts to locate Lupton.     Furthermore,

Lupton's testimony was constitutionally reliable.

     The circumstances under which the prior testimony was

admitted at trial in Roberts are strikingly similar to these

circumstances.   In Roberts, a defense witness at the preliminary

hearing gave testimony favorable to the prosecution.       See 448

U.S. at 58.   The witness was not declared hostile during the

direct examination.   See id.    Later, the defendant was indicted.

At trial, the trial judge ruled that the witness was unavailable

and admitted into evidence a transcript of the witness'

preliminary hearing testimony.     See id. at 59-60.   In ruling

that the defendant's Sixth Amendment rights were not violated,

the Supreme Court held that "'there was an adequate opportunity

to cross-examine [the witness], and counsel . . . availed

himself of that opportunity, the transcript . . . bore

                                - 10 -
sufficient "indicia of reliability" and afforded "'the trier of

fact a satisfactory basis for evaluating the truth of the prior

statement.'"'"   Id. at 73 (citations and footnote omitted).

     The record in this case establishes that Lupton's statement

at the preliminary hearing had already been given under

circumstances closely approximating those that surround the

typical trial.   Longshore was represented by counsel; Longshore

had every opportunity to cross-examine Lupton; and a judicial

record of the hearings was created.    Under these circumstances,

Lupton's statement was admissible at trial.    See Green, 399 U.S.

at 165.   See also Shifflett, 218 Va. at 29, 235 S.E.2d at 319.

     In conclusion, Lupton's preliminary hearing testimony was

admissible at Longshore's trial under the prior testimony

exception to the hearsay rule.   Further, Longshore's Sixth

Amendment confrontation rights were not violated.   We therefore

affirm the conviction.

                                                          Affirmed.




                              - 11 -
Benton, J., concurring, in part, and dissenting, in part.

       I concur in Parts I and II.   I disagree, however, with the

majority's holding that Longshore's Sixth Amendment right "to be

confronted with the witnesses against him" was not violated.          I

therefore dissent.

       In "hold[ing] . . . that the Sixth Amendment's right of an

accused to confront the witnesses against him is . . . a

fundamental right . . . made obligatory on the States by the

Fourteenth Amendment," Pointer v. Texas, 380 U.S. 400, 403

(1965), the Supreme Court indicated that "a major reason

underlying the constitutional confrontation rule is to give a

defendant charged with crime an opportunity to cross-examine the

witnesses against him."    Id. at 406-07.   In Pointer, an

unavailable witness' preliminary hearing testimony was used at

trial over the defendant's objection.    The defendant did not

cross-examine the witness at the preliminary hearing.        Id. at

401.   The Court ruled that the use of the witness' testimony at

trial violated the defendant's Sixth Amendment right to confront

the witness.

       Pointer contains dicta noting that "[t]he case . . . would

be quite a different one had [the witness'] statement been taken

at a full-fledged hearing at which petitioner had been

represented by counsel who had been given a complete and

adequate opportunity to cross-examine."     Id. at 407 (emphasis

added).   This dicta, and dicta from California v. Green, 399

                               - 12 -
U.S. 149, 165 (1970), have been used by courts to suggest that

the Confrontation Clause analysis is focused not on whether the

defendant actually cross-examined the defendant, but whether the

defendant was afforded the opportunity to cross-examine.         See

Ohio v. Roberts, 448 U.S. 56, 70 (1980).      As to date, the

Supreme Court has yet to resolve these issues.      Furthermore, I

believe it is significant that the Court's dicta recognized this

possible exception might occur only if the prior testimony was

given at "a full-fledged hearing."       Pointer, 380 U.S. at 407.

      In Roberts, the defendant was charged with forgery of a

check and with possession of stolen credit cards.      448 U.S. at

58.   Similar to the case before us, a witness called to testify

for the defense at the preliminary hearing gave testimony

favorable to the prosecution.    See id.     The defendant's counsel,

however, "did not ask to have the witness declared hostile and

did not request permission to place her on cross-examination."

Id.   Instead, defense counsel thoroughly examined the witness

using leading questions.   See id. at 70.     When the witness

failed to appear at trial, the trial judge permitted the

prosecutor to enter into evidence the witness' preliminary

hearing testimony.   See id. at 59-60.     The Supreme Court held

that there was no Confrontation Clause violation.      The Court,

however, did "not decide whether . . . the mere opportunity to

cross-examine [or even de minimis cross-examination] rendered

the prior testimony admissible" because the record clearly

                                - 13 -
established that defense counsel "tested [the preliminary

hearing witness'] testimony with the equivalent of significant

cross-examination."     Id. at 70 (emphasis added).   The Court

noted that "[n]o less than 17 plainly leading questions were

asked [by defense counsel of the witness]."     Id. at 70 n.11.

The issue, therefore, was left unresolved.

     We are left, however, with the following language, which

provided the basis for the Court's decision:

          In sum, we perceive no reason to resolve the
          reliability issue differently here than the
          Court did in Green. "Since there was an
          adequate opportunity to cross-examine [the
          witness], and counsel . . . availed himself
          of that opportunity, the transcript . . .
          bore sufficient 'indicia of reliability' and
          afforded '"the trier of fact a satisfactory
          basis for evaluating the truth of the prior
          statement."'"

Id. at 73 (citation omitted) (emphasis added).    The holding in

Roberts, therefore, is premised on the defendant not only having

the opportunity to cross-examine, but having actually

cross-examined the witness.    Indeed, on the question whether

prior trial testimony of a witness is admissible at a subsequent

trial when the witness is unavailable to testify, the Court has

held that the prior testimony is sufficiently reliable if "there

was an adequate opportunity to cross-examine [the witness] at

the first trial, and counsel for [the defendant] availed himself

of that opportunity."     Mancusi v. Stubbs, 408 U.S. 204, 216

(1972) (emphasis added).     See also Lassiter v. Commonwealth, 16


                                - 14 -
Va. App. 605, 614, 431 S.E.2d 900, 906 (1993) (holding that

"[o]nly when [a] witness' unavailability is proved, the issues

and parties are the same, and complete and adequate

cross-examination has been afforded on the issues, may testimony

from another hearing be admitted at a subsequent trial"

(emphasis added)).

     In contrast, the facts before us prove that Longshore's

counsel neither cross-examined Lupton at the preliminary hearing

nor engaged in the functional equivalent of cross-examination.

Lupton's testimony was not "tested . . . with [any] equivalent

of . . . cross-examination."   Roberts, 448 U.S. at 70.

Longshore's counsel's failure to cross-examine Lupton at the

preliminary hearing could stem from a number of legitimate

reasons, including the fact that Lupton was subpoenaed by the

Commonwealth but not used as its witness.   Indeed, Lupton's

direct testimony at the preliminary hearing proved that

Longshore made demands of Bundy but did not prove that a robbery

occurred.   Moreover, in Virginia a preliminary hearing poses

limitations on defense counsel because the Supreme Court has

ruled defense counsel may not use the proceeding for the purpose

of discovering evidence to be used at trial.   See Williams v.

Commonwealth, 208 Va. 724, 729, 160 S.E.2d 781, 784 (1968).     In

this context, we must be mindful of the proper role of a

preliminary hearing in the truth finding process.



                               - 15 -
          The right to confrontation is basically a
          trial right. It includes both the
          opportunity to cross-examine and the
          occasion for the jury to weigh the demeanor
          of the witness. A preliminary hearing is
          ordinarily a much less searching exploration
          into the merits of a case than a trial,
          simply because its function is the more
          limited one of determining whether probable
          cause exists to hold the accused for trial.

Barber v. Page, 390 U.S. 719, 725 (1968).

     Because Longshore's questioning of Lupton at the

preliminary hearing was neither cross-examination nor its

equivalent, I would hold that Lupton's testimony was entered

into evidence at trial in violation of the Confrontation Clause.




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