                     COURT OF APPEALS OF VIRGINIA


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


ALVIN J. COOPER, S/K/A
 ALVIN JERMAINE COOPER
                                               OPINION BY
v.           Record No. 0489-97-1        JUDGE RICHARD S. BRAY
                                             FEBRUARY 17, 1998
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                         Walter J. Ford, Judge
             Charles E. Haden (J. Robert Harris, III, on
             brief), for appellant.

             Steven A. Witmer, Assistant Attorney General
             (Richard Cullen, Attorney General;
             Kimberley A. Whittle, Assistant Attorney
             General, on brief), for appellee.



     Alvin J. Cooper (defendant) was convicted in a bench trial

for robbery and the related use of a firearm in violation of Code

§§ 18.2-53.1 and 18.2-58.    On appeal, he complains that the trial

court erroneously admitted into evidence the written statement of

a codefendant and challenges the sufficiency of the evidence to

support the convictions.    Finding no error, we affirm the

decision of the trial court.

     In accordance with well established principles, we consider

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.     Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).

     At approximately 6:00 a.m. on April 27, 1996, Kentwan Boone,
Charles Scott, and defendant approached the victim as he prepared

to enter his truck.   While standing within "two or three feet" of

the victim, one of the three pointed a firearm at him and

demanded money.   The other two were positioned "[b]ehind the

truck a couple of feet," and "[o]ff to the right," approximately

"15 to 20" feet away.   The victim recalled that the weapon

"looked like a handgun . . . [with] a copper metallic look" but

"[w]hether it was real or not, [he] could not tell."    Fearful,

the victim emptied his pockets onto the ground.   One assailant

grabbed the victim's keys, another removed the victim's

"portfolio" from his truck, and the perpetrators then fled in a

vehicle driven by defendant and owned by his father.
     A nearby resident observed the robbery and alerted police.

Soon thereafter, Virginia State Trooper Stephen Harris stopped

the vehicle and ascertained that defendant was the driver, Boone

and Scott the passengers.   The victim's checkbook and operator's

license were found on the front seat.    Minutes later, another

officer brought the victim to the scene, and he identified the

three suspects as the robbers.

     Both Boone and defendant provided investigators with written

statements.   Boone admitted that the threesome were "planning to

rob someone" when they initially observed the victim.   He

recalled that Scott wielded the weapon, a "real" gun, and that

defendant had discarded the victim's portfolio as he drove the

getaway vehicle from the crime scene.    Defendant acknowledged




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only "watching" the robbery, "kick[ing]" the victim's keys, and

driving his companions away.   He denied involvement in planning

the offense, explaining that the men were en route "to meet a guy

named Kevin" when they observed the victim, "walking."    He

claimed that Boone then "pulled out the water gun" and demanded

that the victim "stop looking at where they were going."    When

police asked defendant why the victim was "chosen to be robbed,"

he responded that "[h]e was the only one out, watching us."
     The Commonwealth subpoenaed Boone for trial on three

separate occasions, 1 always at the same address.   The sheriff's

returns reported personal service on Boone in the first instance

on October 3, 1996, for trial October 21, 1996, and "posted"

service on October 30, 1996, for trial November 5, and, again, on

November 18, 1996, for the actual trial date, January 10, 1997.

Nevertheless, Boone failed to appear at trial and the

Commonwealth offered his statement to police as evidence against

defendant, relying upon Boone's unavailability to testify as an

exception to the hearsay rule.    Overruling defendant's objection,

the court concluded that "looking at the totality of the

circumstances, . . . [Boone's] absence here today would lead me

to believe that he is unavailable, so I declare him to be a

witness that's unavailable," and Boone's confession was received

into evidence.

     1
      Trial was twice continued, but these delays are not in
issue.




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                    The Third Party Statement
               In Virginia, for a declaration against
          penal interest to be admissible, it must meet
          the following requirements: (1) the
          declarant must be "unavailable to testify at
          trial," (2) the statement must be against the
          declarant's interest at the time it was made;
          and (3) the declarant must be aware at the
          time the statement is made that it is against
          his or her interest to make it. While it is
          settled . . . that a declaration against
          penal interest is recognized as an exception
          to the hearsay rule, "'such a declaration
          made out of court by . . . [an] unavailable
          witness is admissible only upon a showing
          that the declaration is reliable.'"

Randolph v. Commonwealth, 24 Va. App. 345, 355, 482 S.E.2d 101,

105-06 (1997) (citations omitted).       Defendant challenges only

Boone's unavailability to testify and the reliability of his

statement to police.

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

introduce the statement has been unable by diligent inquiry to

locate the declarant."     McDonnough v. Commonwealth, 25 Va. App.

120, 127, 486 S.E.2d 570, 573 (1997) (citations omitted).      "Due

diligence 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 (citations omitted).

However, "at a minimum, . . . a party [must] attempt to subpoena

the witness or provide a reasonable explanation of why a subpoena

was not issued."    Id.   "'The party offering [the] hearsay

testimony has the burden of establishing the witness'

"unavailability."   Determining whether the offering party has met



                                 - 4 -
its burden and, thus, whether the declarant is "unavailable," is

left to the trial court's discretion,'" and "will be reversed on

appeal only if plainly wrong or without evidence to support it."

Id. at 127, 486 S.E.2d at 573; see also Wise Terminal Co. v.

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

Commonwealth, 15 Va. App. 87, 102, 422 S.E.2d 398, 406 (1992).

     Here, the record clearly discloses the Commonwealth's

diligence in seeking to compel Boone's presence when the subject

indictments were scheduled for trial.    Timely subpoenas, issued

only weeks apart to the same address, had resulted in both

personal and posted service on Boone.    Nothing suggested that

Boone had relocated or was otherwise unaware of the subpoenas.

Under such circumstances, the court properly exercised sound

discretion in concluding that the Commonwealth had acted

responsibly to secure Boone's attendance at trial and thereby
                                  2
established his unavailability.
                           Reliability

     "'[W]hen one person accuses another of a crime under

circumstances in which the declarant stands to gain by

inculpating another, the accusation is presumptively suspect and

must be subjected to the scrutiny of cross-examination.'"
McDonnough, 25 Va. App. at 131, 486 S.E.2d at 575 (quoting Lee v.

     2
      On appeal, defendant contends the trial court found Boone
unavailable only because the Commonwealth anticipated an
invocation of his Fifth Amendment rights. However, this
assertion is unsupported by the record.



                              - 5 -
Illinois, 476 U.S. 530, 541 (1986)).   "'But where proffered

hearsay has sufficient guarantees of reliability to come within a

firmly rooted exception to the hearsay rule, the Confrontation

Clause is satisfied.'"   Id. (quoting White v. Illinois, 502 U.S.

346, 356 (1992)). Thus,
          "'once it has been established that a
          third-party confession has been made, the
          crucial issue is whether the content of the
          confession is trustworthy. And determination
          of this issue turns upon whether . . . the
          case is one where "there is anything
          substantial other than the bare confession to
          connect the declarant with the crime."'"

Randolph, 24 Va. App. at 356, 482 S.E.2d at 106 (quoting Morris

v. Commonwealth, 229 Va. 145, 147, 326 S.E.2d 693, 694 (1985)

(citation omitted)).   "[T]he Virginia Supreme Court has made '"no

attempt . . . to delineate the quality or quantity of evidence

necessary to establish reliability; the question must be left to

the sound discretion of the trial court, to be determined upon

the facts and circumstances of each case."'"    Id. (citations

omitted).

     Here, Boone and defendant were among three men apprehended

in a vehicle driven by defendant, moments after an armed robbery

and in possession of property stolen during the offense.   Within

minutes, all were identified by the victim.    Boone confessed to a

detective shortly thereafter, naming defendant, Scott, and

himself as the perpetrators.   Moreover, defendant subsequently

admitted complicity in a statement to the same investigator.

Thus, the reliability inherent in Boone's admissions against his


                               - 6 -
penal interest was substantially enhanced by other evidence

relating both Boone and defendant to the crimes, and the court

correctly found the statement sufficiently trustworthy.     See

Randolph, 24 Va. App. at 356-57, 482 S.E.2d at 106.




                     Sufficiency of the Evidence

     Boone's confession, together with the victim's

identifications, defendant's statements, and the circumstances of

his apprehension, provided ample evidence to support the robbery

conviction.    With respect to the firearm offense, the victim

testified that the weapon "looked like a handgun . . . [with] a

copper metallic look," Boone described it as "real," and

defendant testified that he "assume[d]" Boone "would know what

kind of gun it was."   Thus, viewed in the light most favorable to

the Commonwealth, the evidence provided ample support for both

convictions.
     Accordingly, we affirm the judgment of the trial court.
                                                          Affirmed.




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