                   COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia


SHAMONT DAMON BURRELL
                                      MEMORANDUM OPINION * BY
v.        Record No. 1680-95-1      JUDGE JERE M. H. WILLIS, JR.
                                           APRIL 1, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                     John E. Clarkson, Judge
          Michael Morchower (Anthony G. Spencer; Lee W.
          Kilduff; Morchower, Luxton & Whaley, on
          brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Shamont Damon Burrell appeals his jury convictions for

murder, malicious wounding, conspiracy and two counts of using a

firearm in the commission of a felony.   He contends:   (1) that

the trial court erred in admitting into evidence a transcript of

an unavailable witness' prior testimony, and (2) that the

evidence was insufficient to sustain his convictions.     We affirm

the convictions.

     Under familiar notions of appellate review, "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).
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     In the early morning hours of January 17, 1994, following a

skating party, a fight erupted between two rival groups of

students from Norfolk State University.   Burrell was associated

with one of the groups, which included students from the New York

City area.    Gerard Edwards was identified with the other group,

which included students from the Washington, D.C. area.   Burrell

and Edwards fought each other during the brawl.

     Later that evening, Burrell gathered with several friends in

Room 228 of Scott Hall, a university dormitory.   Burrell was

still angry with Edwards and stated that "he wanted to get the

D.C. boys."   The understanding among the group was that they were

going to shoot Edwards.   Derrick Washington testified that he

agreed to be a lookout, and Burrell was to be the "gunman."     He

testified that Burrell announced that he knew the combination

lock to Edwards' dorm room.   Burrell had lived with Edwards

previously.
     Washington testified that Burrell, wearing a rubber glove,

punched in the combination to Edwards' door and entered the room

with Tony Britton.    Washington heard gunshots, and Burrell fled

from Edwards' room, handing Washington the gun as he ran past.

     Christopher Skinner had also agreed to act as a lookout.        He

testified that prior to the shooting Burrell was wearing black

pants and a brown hooded sweatshirt.    Ten minutes after the

shooting, Skinner saw Burrell in the first floor lobby in a

T-shirt and shorts.   Skinner stated that he agreed to Burrell's




                                - 2 -
request that he would say that Burrell was downstairs with him

during the shooting.

        Ronald Richardson testified that he lived with Edwards in

Room 225 of Scott Hall.    Before retiring on the night of January

17, Edwards pushed a desk against the door, and placed a baseball

bat beside his bed.    Richardson noted that Edwards appeared

fearful.    Richardson was awakened during the night by a loud

crash.    He saw the door of the room open, and flashes coming from

a gun.    Shot at least six times, Edwards died from his wounds.

Richardson also suffered serious injuries from gunshot wounds.
                                  I.

        At the preliminary hearing on April 1, 1994, Donald Toatley,

a student at Norfolk State University, was examined and

cross-examined under oath regarding the events that occurred at

the skating rink.    He testified that he had seen Burrell and

Edwards fighting in a brawl at the skating rink, and saw Burrell

attempt to hit Edwards.    He stated that he asked Burrell and the

others to "let it ride," and quit fighting.    Burrell responded:

"F___    that, I'll kill him."

        Toatley was subpoenaed by the Commonwealth, but failed to

appear at trial.    The subpoena had been served several months

prior to trial by posting at Toatley's residence.    Toatley's

appearance at previous proceedings had been secured by the same

method of service.    On the second day of trial, the Commonwealth

learned that Toatley had not appeared.    The trial court issued a




                                 - 3 -
capias for Toatley's arrest, and Police Investigator Glen Ford

attempted to locate Toatley by telephoning and visiting his

residence.    Toatley's roommate told Ford that he had not seen

Toatley for two days, and did not know where he worked.      Ford

determined that Toatley was not in custody in any neighboring

jurisdiction.

     Because Toatley could not be located for trial, the

Commonwealth proffered into evidence his prior recorded testimony

from the preliminary hearing.     The trial court admitted the

transcript into evidence.
     First, Burrell argues that the Commonwealth failed to show a

diligent and good faith effort to locate Toatley.


             Before admitting a transcript of prior

             testimony, the court must be satisfied

             "'that a sufficient reason is shown why

             the original witness is not produced.'"[]

             Thus, for a witness to be deemed unavailable,

             the proponent of the evidence bears the

             burden     of proving to the satisfaction of

             the court that one of the following

             conditions exists:   . . . (5) The party has

             been unable by diligent inquiry to locate the

             declarant. . . .

Doan v. Commonwealth, 15 Va. App. 87, 100-01, 422 S.E.2d 398,

405-06 (1992) (citations and footnote omitted).       "'[I]t is well



                                  - 4 -
settled that the sufficiency of the proof to establish the

unavailability of a witness is largely within the discretion of

the trial court, and, in the absence of a showing that such

discretion has been abused, will not be interfered with on

appeal.'"   Doan, 15 Va. App. at 102, 422 S.E.2d at 406 (quoting

Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 665 (1954)).

     Upon reviewing the record, we conclude that the evidence

does not support the trial court's finding that the Commonwealth

exercised due diligence to secure Toatley's appearance.    Cf.

Doan, 15 Va. App. at 101-02, 422 S.E.2d at 406 (holding that

reasonable diligence not demonstrated where witness not

subpoenaed and no evidence shown of other measures to secure his

appearance).   The Commonwealth did not confirm that Toatley

actually received the subpoena.    It had no contact with him from

the issuance of the subpoena to the time of trial, and thus

developed no continuing assurance of his appearance.   It did

not check for his appearance before the commencement of the

trial.   Its frantic efforts to locate him upon discovering his

non-appearance were insufficient to compensate for a lack of

appropriate pretrial precaution.

     While we hold that the trial court erred in ruling that the

Commonwealth had exercised due diligence to procure Toatley's

appearance, we find that error to be harmless.   The events

described by Toatley bore only tangentially on the circumstances

surrounding the murder.   Furthermore, Toatley's testimony was



                               - 5 -
only cumulative.

     Second, Burrell contends that he was denied an adequate

opportunity to cross-examine Toatley at the preliminary hearing.

He argues that he was unable to question Toatley regarding the

circumstances under which Toatley identified Burrell as having

threatened to kill Edwards.   Burrell also asserts that because

the preliminary hearing was held prior to his indictment for

conspiracy to murder Edwards, he was unable to fully
cross-examine Toatley regarding the statements and actions of

others who may have conspired to kill Edwards.

          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
          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.


Jones v. Commonwealth, 22 Va. App. 46, 52, 467 S.E.2d 841, 844

(1996) (citing 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)).

     Burrell's counsel availed himself of the opportunity to

cross-examine Toatley at the preliminary hearing.   While counsel

declined to explore whether the photographic identification by

Toatley of Burrell was unduly suggestive, he was not denied

adequate opportunity to do so.    The subsequent indictment for

conspiracy did not render Burrell's prior opportunity to confront



                                 - 6 -
Toatley at the preliminary hearing inadequate.    The issues at the

preliminary hearing, and at trial, about which Toatley could

testify, concerned the events witnessed at the skating rink.      The

skating rink brawl occurred prior to the formation of the

conspiracy, prior to the murder of Edwards, and prior to the

malicious wounding of Richardson.     Because the issues at the

preliminary hearing were the same or similar to the issues which

later developed at trial, the addition of the conspiracy charge

was of no consequence in guaranteeing Burrell an adequate

opportunity to cross-examine Toatley.
                               II.

     Burrell contends next that the evidence was insufficient to

sustain his convictions because Christopher Skinner and Derrick

Washington benefitted from their testimony and gave conflicting

accounts of what transpired. We disagree.
               When the law says that it is for the
          triers of fact to judge the credibility of a
          witness, the issue is not a matter of degree.
           So long as a witness deposes as to facts
          which, if true, are sufficient to maintain
          their verdict, then the fact that the
          witness' credit is impeached by contradictory
          statements affects only the witness'
          credibility; contradictory statements by a
          witness go not to competency but to the
          weight and sufficiency of the testimony. If
          the trier of fact sees fit to base the
          verdict upon that testimony there can be no
          relief in the appellate court.


Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259

(1989) (citation omitted).

     The jury accepted the Commonwealth's evidence, and rejected


                              - 7 -
Burrell's testimony that he was not involved in the shooting of

Edwards and Richardson.   Our review of the record reveals

sufficient credible evidence to sustain Burrell's convictions.

Accordingly, the judgment of the trial court is affirmed.

                                                   Affirmed.




                               - 8 -
