                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


DEQUAN SHAKEITH SAPP
                                                 OPINION BY
v.   Record No. 0483-00-1                   JUDGE G. STEVEN AGEE
                                                MAY 22, 2001
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Randolph T. West, Judge

            (David B. Olson; Cope, Olson & Yoffy, P.L.C.,
            on brief), for appellant. Appellant
            submitting on brief.

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


     The Circuit Court of the City of Newport News convicted

Dequan Shakeith Sapp (Sapp) in a bench trial of robbery, maiming

and two counts of using a firearm in the commission of those

felonies.   He was sentenced to serve a total of eleven years for

these offenses.

     Sapp contends on appeal the trial court erred when it

permitted the prior recorded preliminary hearing testimony of the

victim and an eyewitness to be admitted into evidence where both

witnesses were present at trial but refused to testify.     Finding

no error by the trial court, we affirm the convictions.
                              Background

       On Sunday, April 4, 1999, Sean McClellan (McClellan)

dropped Billy Perkins (Perkins) off near his home after a

shopping trip.   As Perkins began walking toward his home, two

cars pulled up next to him.    Sapp and four other men jumped out

of the vehicles and surrounded Perkins.    Sapp asked Perkins,

"where's my brother's shit," which Perkins understood as a

reference to cocaine.   When Perkins denied that he had any

cocaine, Sapp ran over to his car, pulled out a Tech 9 gun and

returned to Perkins.    Pointing the gun at Perkins' face, Sapp

grabbed the gold chain hanging on Perkins' neck and pulled it

off.   As Perkins backed up so that he was seated on one of the

cars, the group of men repeatedly punched him and rifled through

his pockets, stealing his pager.    Perkins heard someone say,

"slit his wrist, slit his wrist."    Perkins managed to get to his

feet and flee.   He was later treated at a hospital where wounds

to his hand and lip were stitched.

       McClellan witnessed the crimes from his vehicle.

       On August 24, 1999, both Perkins and McClellan testified at

length in the preliminary hearing and were cross-examined

extensively by two defense counsel.     Sapp changed counsel

between the preliminary hearing and trial.

       At trial on December 21, 1999, both Perkins and McClellan

were sworn as witnesses but refused to testify, each telling the

trial judge he was afraid for his life.    Perkins testified:

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            I'm too scared, you know, to say anything,
            testify, for the simple fact I'd be
            jeopardizing my life . . . . I know what
            happened, but I'm too scared, you know, to
            say . . . .

     Similarly, McClellan testified:

            I don't want to testify. I don't want to
            testify . . . . I don't feel safe
            testifying.

McClellan also testified that he "forgot a lot of stuff."

     Perkins and McClellan both stated in open court that they

were refusing to testify.   Upon examination by the

Commonwealth's attorney, both Perkins and McClellan affirmed

that they remembered their appearance at the preliminary hearing

and that the testimony given at the preliminary hearing had been

truthful.   Neither could identify specific threats from Sapp or

persons acting for Sapp, but both had heard "talk on the street"

threatening their personal safety if they testified at trial.

     The Commonwealth moved to have Perkins' and McClellan's

testimony from the preliminary hearing entered into the record,

on the basis that each witness "is declaring himself

unavailable."   In its motion, the Commonwealth cited our

decision in Jones v. Commonwealth, 22 Va. App. 46, 467 S.E.2d

841 (1996), as recognizing a hearsay exception for prior

testimony of an unavailable witness.    Sapp's trial counsel

timely objected to the introduction of the preliminary hearing

testimony and asked the trial court to use its contempt power to

compel Perkins and McClellan to testify.

                                - 3 -
     The trial judge conducted a colloquy with each witness to

verify he knew the refusal to testify meant his prior testimony

would be read into the trial record.      The trial judge opined

that he could not use the contempt power in this setting.      The

judge, citing Jones, then denied Sapp's motion and admitted into

the record the preliminary hearing testimony of Perkins and

McClellan.    Sapp was convicted and later sentenced.

                               Analysis

     On appeal, Sapp alleges several grounds for his contention

that the trial court erred when admitting the prior testimony.

All of Sapp's arguments are tied to his constitutional right to

confront the witnesses against him.       (U.S. Const. amend. VI; Va.

Const., art. I, § 8).    Citing Longshore v. Commonwealth, 260 Va.

3, 530 S.E.2d 146 (2000), Sapp argues the case law requirements

for introducing prior testimony were not met.

     In Longshore, the Supreme Court of Virginia reiterated the

general standards under which prior testimony of an unavailable

witness may be admitted at a later proceeding as an exception to

the rules of evidence regarding hearsay.

             [T]he preliminary hearing testimony of a
             witness who is absent at a subsequent
             criminal trial may be admitted into evidence
             if the following conditions are satisfied:
             (1) that the witness is presently
             unavailable; (2) that the prior testimony of
             the witness was given under oath (or in a
             form of affirmation that is legally
             sufficient); (3) that the prior testimony
             was accurately recorded or that the person
             who seeks to relate the testimony of the

                                 - 4 -
          unavailable witness can state the subject
          matter of the unavailable witness's
          testimony with clarity and in detail; and
          (4) that the party against whom the prior
          testimony is offered was present, and
          represented by counsel, at the preliminary
          hearing and was afforded the opportunity of
          cross-examination when the witness testified
          at the preliminary hearing.

Id. at 3-4, 530 S.E.2d at 146-47 (citations omitted).

Essentially, Sapp alleges conditions one and four were not met

in this case.   No error is alleged as to the second and third

requirements.

     As to the "unavailability" of the witnesses, Sapp argues

his case is distinguishable from our ruling in Jones because the

reluctant witness there was "unavailable" due to real or feigned

memory loss.    Because Perkins and McClellan claimed fear, not

memory loss, as their reason not to testify, Sapp argues Jones

should not apply.   Sapp also avers that the witnesses could have

been made "available" had the trial court threatened them with

contempt, which the court refused to do.

     As to the last condition in Longshore, Sapp argues that

because trial counsel, as opposed to his counsel at the

preliminary hearing, could not cross-examine Perkins and

McClellan, he was denied his constitutional right to confront

the witnesses against him.

                     I.   The Unavailable Witness

     Both the United States Supreme Court and the Supreme Court

of Virginia have long recognized the admissibility in a criminal

                                 - 5 -
trial of prior recorded testimony of an unavailable witness

under certain circumstances.   Mattox v. United States, 156 U.S.

237 (1985); Fisher v. Commonwealth, 217 Va. 808, 232 S.E.2d 798

(1977).   The preliminary condition which must be met is that the

declarant, whose former testimony is to be admitted into

evidence as a hearsay exception, must be "unavailable."       Doan v.

Commonwealth, 15 Va. App. 87, 100, 422 S.E.2d 398, 405 (1992).

     "The party offering the hearsay testimony has the burden of

establishing the witness' 'unavailability.'    Determining whether

the offering party has met its burden and, thus, whether the

declarant is 'unavailable,' is left to the trial court's

discretion."   Jones, 22 Va. App. at 50, 467 S.E.2d at 843.

     While we have recognized a number of factors which may

satisfy the foundational requirement of "unavailability" of a

witness (i.e., the witness dies), it is clear there is no

exclusive list.   Id. at 50-51, 467 S.E.2d at 843; see also

Charles E. Friend, The Law of Evidence in Virginia § 18-9 (4th

ed. 1993).   To the contrary, the Supreme Court of Virginia's

long-standing rule is "that a sufficient reason is shown why the

original witness is not produced."     Wise Terminal Co. v.

McCormick, 107 Va. 376, 379, 58 S.E. 584, 585 (1907); accord

Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 664 (1954).

     Based on this precedent, we held in Jones that the prior

testimony of Brown was admissible because Brown's testimony was

unavailable even though he was present in court.

                               - 6 -
           [T]he 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.

22 Va. App. at 52, 467 S.E.2d at 844 (emphasis added).

     We see no meaningful distinction between the unavailable

witness testimony by reason of memory loss in Jones and the

unavailable witness testimony of Perkins and McClellan by reason

of fear.   The unavailable testimony of a fearful witness is as

unavailable as if the witness had forgotten the events or become

incapacitated.   The testimony is simply not available, and no

means is extant to make it so.

     Contrary to Sapp's contention that Jones only refers to

witnesses with failed memory, the reluctant witness there

"simply did not want to testify."        Id.   Perkins' and McClellan's

refusals here are not mere recalcitrance, but were based on a

real fear of retribution or retaliation if they testified.        The

testimony of Perkins and McClellan was uncontradicted as to the

fear for their safety should they testify at trial.




                                 - 7 -
     The trier of fact was uniquely and appropriately situated

to observe the demeanor of both witnesses and ascertain whether

or not their testimony of fear-induced silence was real or

feigned.   Witness credibility, the weight accorded the testimony

and the inferences to be drawn from proven facts are matters to

be determined by the fact finder, and the trial court's judgment

will not be disturbed on appeal unless it is plainly wrong or

without evidence to support it.   See Code § 8.01-680; see also

Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476

(1989).

     An exception to the hearsay rule on unavailability of the

declarant due to the witness' refusal to testify based on fear

appears to be a question of first impression in Virginia.    Other

states and the federal courts have dealt with such a refusal to

testify, have found the fearful witness "practically

unavailable," and have ruled that the witness' prior testimony

was admissible as a valid hearsay exception and not violative of

the Confrontation Clause.

     In Geraci v. Senkowski, 211 F.3d 6 (2d Cir. 2000), the

United States Court of Appeals for the Second Circuit, applying

New York state law in a habeas corpus proceeding, ruled that

where a witness refuses to testify out of fear, and the

prosecutor demonstrates that the witness has been threatened,

the witness is "practically unavailable" for purposes of the

hearsay exception for prior testimony.   Id. at 9-10.

                               - 8 -
     In Geraci, an eyewitness to a stabbing testified before a

state grand jury that he saw the defendant stab the victim.     It

was later discovered that the grand jury minutes were missing,

and, just prior to trial, the witness quit his well-paying job

without notice and fled from his home.   When he subsequently was

located in Florida, the witness stated that he had been

approached by a person who showed him the grand jury minutes

describing his testimony and that both he and his family were

threatened.   In addition, he had been offered and received

substantial sums of money for staying away from New York until

after the trial.   None of these events, though, could be

personally connected to Geraci, the defendant.

     Prior to testifying at trial, the witness indicated to

prosecutors that he would change the story he had given under

oath before the grand jury.   The witness followed through with

his plan and testified that he had not seen the stabbing.     He

explained the discrepancy between this testimony and his

testimony before the grand jury on the ground that when he first

testified he was unsure of the facts because the club had been

dark and he had been drinking.

     The state trial court determined that the witness was

"markedly evasive" in this testimony.    The trial court also

found that the prosecution had demonstrated by clear and

convincing evidence that someone acting on Geraci's behalf



                                 - 9 -
threatened the witness and that if required to testify, the

witness would do so falsely.   As a result, the trial court found

the witness "practically unavailable" and permitted the use of

his grand jury testimony in the prosecution's case.     Geraci was

convicted, and the appellate courts of New York affirmed.     The

Second Circuit held, "'a witness who is so fearful that he will

not testify' or will testify falsely, 'is just as unavailable as

a witness who is dead or cannot be found.'"   Id. at 9 (citations

omitted).

     We find no merit in Sapp's claim that the trial court erred

by not using the contempt power to compel Perkins and McClellan

to testify.   As at trial, Sapp cites no authority for this

argument.   The use of the court's contempt power is

discretionary, not mandatory, and cannot be applied in all

situations.   Code § 18.2-456; see also Higginbotham v.

Commonwealth, 206 Va. 291, 142 S.E.2d 746 (1965).      The record

does not reflect the trial judge acted improperly or abused his

discretion in this regard.   To the contrary, the trial judge

pointed out to each witness that his preliminary hearing

testimony would be used against Sapp if the witness continued to

refuse to testify.   Thus, the trial judge clearly informed each

witness he could not escape the use of his testimony.

     We conclude the first condition of Longshore was satisfied.

The witnesses, Perkins and McClellan, were unavailable because



                               - 10 -
they refused to testify based on uncontradicted evidence of

their fear for their personal safety.

              II.   Opportunity of Cross-Examination

     Sapp argues that the last prong of Longshore was violated

in this case because his trial attorney did not cross-examine

Perkins and McClellan at the preliminary hearing.     Accordingly,

Sapp avers his Confrontation Clause right was thwarted.     We

disagree.

     Longshore and prior case law are manifestly clear that it

is the "opportunity of cross-examination" which must be

available at the prior proceeding.      Longshore, 260 Va. at 4, 530

S.E.2d at 147 (citations omitted).      There is no support for

Sapp's argument that this "opportunity" is provided only if

trial counsel is the person afforded that opportunity.

     The record plainly reflects Perkins and McClellan were

subject to extensive cross-examination at the preliminary

hearing by two attorneys.   Between the preliminary hearing and

trial, Sapp changed counsel.   Without question, Sapp received

and exercised the opportunity of cross-examination.     We find no

merit to his contention that such opportunity should apply only

to his last counsel of record.

     For the foregoing reasons, we hold Sapp's Confrontation

Clause rights were met.   The witnesses' preliminary hearing

testimony was properly admitted at trial because they were

effectively unavailable and Sapp had been adequately afforded

                               - 11 -
the opportunity of cross-examination at the prior proceeding.

Accordingly, all of Sapp's convictions are affirmed.

                                                       Affirmed.




                             - 12 -
Benton, J., dissenting.

     The Sixth Amendment provides, in part, that "[i]n all

criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him."    The United

States Supreme Court has held that this right of confrontation

is fundamental and is made obligatory on the States through the

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

(1965).   While the Confrontation Clause and the hearsay rules

have similar aims, their prohibitions are not equivalent.        Idaho

v. Wright, 497 U.S. 810, 814.    "The Confrontation Clause . . .

bars the admission of some evidence that would otherwise be

admissible under an exception to the hearsay rule."     Id.     In

order to satisfy the Confrontation Clause, the prosecution must

establish that use of the prior testimony is necessary because

the declarant is unavailable and the evidence bears adequate

"indicia of reliability," such as where it falls within a firmly

rooted hearsay exception.     Id. at 814-15.

     The rule is well established in Virginia concerning the

admission of such evidence as an exception to the hearsay rule.

As a prerequisite to the admission into evidence of testimony

given at a former hearing, the record must establish the

"unavailability" of the witness.     Burton v. Oldfield, 195 Va.

544, 549-50, 79 S.E.2d 660, 664 (1954).

     In this case, the Commonwealth failed to satisfy the

"unavailability" requirement necessary to conform to the

                                - 13 -
strictures of both the Confrontation Clause and the hearsay

rule.    The record clearly establishes that Sean McClellan and

Billy Perkins were present in the courtroom and testified under

oath.    In no sense can we say either was "an absent witness,"

which was the circumstance existing in Longshore v.

Commonwealth, 260 Va. 3, 3, 530 S.E.2d 146, 146 (2000).

        In addition, the testimony of each witness establishes that

he was not "unavailable."    As we noted in Jones v. Commonwealth,

22 Va. App. 46, 467 S.E.2d 841 (1996), Virginia precedent has

established a partial list of reasons why a declarant may be

"unavailable," including death, illness and the opposing party's

causing the declarant's absence.    22 Va. App. at 50-51, 467

S.E.2d at 843.    In Jones, we expressly decided as an issue of

first impression in Virginia "[w]hether a witness' lack of

memory renders the witness 'unavailable.'"     Id. at 50, 467

S.E.2d at 843 (emphasis added).    The record in that case

established the following:

                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

                                - 14 -
            statement to the police, or testimony at the
            preliminary hearing.

Id. at 49, 467 S.E.2d at 843.    Under these circumstances, the

trial judge "concluded that Brown's inability to remember his

preliminary hearing testimony rendered him an 'unavailable'

witness."    Id. at 49-50, 467 S.E.2d at 843.   We affirmed the

trial judge's decision to allow the use of the witness' prior

testimony, and we held that "although [the witness] appeared in

court and testified to his present lack of memory, he was

'unavailable.'"    Id. at 52, 467 S.E.2d at 844.   We did not hold

that mere unwillingness to testify was sufficient to make a

witness "unavailable."

     Citing Geraci v. Senkowski, 211 F.3d 6, 8 (2d Cir. 2000),

the Commonwealth argues that general fear of testifying makes a

witness unavailable.   In Geraci, however, the record established

the following:

               The trial court determined that Terranova
            had been "markedly evasive" in his testimony
            at the hearing. The trial court also found
            that the prosecution had demonstrated by
            clear and convincing evidence that Terranova
            had been threatened by [the accused] or
            someone acting on [the accused's] behalf,
            and that if required to testify, he would do
            so falsely. As a result, the trial court
            found Terranova "practically unavailable"
            and permitted the use of his grand jury
            testimony in the prosecution's case.

Id. at 8.

     Upon these findings, the court in Geraci held that the

witness "was 'practically unavailable' because of threats

                                - 15 -
against him and his family made on behalf of [the accused]."

Id. at 9.   In other words, Geraci merely restates the well

established, unremarkable proposition that "[an accused] who

procures a witness's absence waives the right of confrontation

for all purposes with regard to that witness, not just to the

admission of sworn hearsay statements."    United States v.

Aguiar, 975 F.2d 45, 47 (2d Cir. 1992).

     I believe that we eviscerate the Confrontation Clause and

the hearsay rule by expanding the meaning of "unavailability" to

include a generalized fear of harm.    This unprecedented

expansion unreasonably curtails an accused's right to confront

the witnesses against him or her any time a witness simply

refuses to testify without identifying a specific, credible

threat.   The majority's position imposes a limitation that

hinders the accused's right of confrontation and the

fact finder's ability to determine the truth of a matter. 1

     Furthermore, the Commonwealth has not borne its burden of

proving that Sapp caused or contributed to the reluctance of

these witnesses to testify.   No evidence in this case tends to

prove that Sapp or anyone acting on his behalf threatened or


     1
       The position taken by the majority and the trial judge is
further undermined by the fact that the witnesses' preliminary
hearing testimony was admitted despite the witnesses' fear that
they would be harmed if they testified. In effect, these
witnesses were allowed to control the presentation of their
testimony. Rather than acquiesce to these conditions, the trial
judge should have explored every avenue that might have led them
to testify, including use of the contempt power.

                              - 16 -
intimidated these witnesses.   The evidence proves only that

McClellan and Perkins were reluctant to testify and expressed

only a general fear because of "hearing talk here and there in

the streets."   This evidence was not sufficient to prove the

witnesses were unavailable and would not have testified under

proper circumstances and safeguards.

     I would hold that the mere unwillingness of a witness to

testify because of a generalized fear is insufficient to make

the witness "unavailable."   Accordingly, I would hold that the

trial judge erred by admitting into evidence at trial, as an

exception to the hearsay rule and the commands of the

Confrontation Clause, the witnesses' prior testimony given at a

preliminary hearing.

     I dissent.




                               - 17 -
