                                COURT OF APPEALS OF VIRGINIA


Present: Judges Clements, Felton and McClanahan
Argued at Alexandria, Virginia


NHI AL TRAN
                                                               MEMORANDUM OPINION* BY
v.      Record No. 2357-03-4                                   JUDGE WALTER S. FELTON, JR.
                                                                   SEPTEMBER 14, 2004
COMMONWEALTH OF VIRGINIA


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                   R. Terrence Ney, Judge

                  Mark J. Yeager (Law Offices of Mark J. Yeager, P.C., on briefs), for
                  appellant.

                  Stephen R. McCullough, Assistant Attorney General (Jerry W.
                  Kilgore, Attorney General, on brief), for appellee.


        Nhi Al Tran (appellant) was convicted by a jury on three counts of check forgery in

violation of Code § 18.2-172. Appellant contends that the trial court erred in (1) determining that

Giang Dong was not available as a defense witness because he did not waive his Fifth Amendment

privilege against self-incrimination; and (2) in failing to admit into evidence defense exhibit 3, a

typewritten letter prepared by appellant and bearing Dong’s signature, as a declaration against penal

interest exception to the hearsay rule. Finding no error, we affirm the convictions.

                                           BACKGROUND

        Applying familiar principles of law, we review the evidence and all reasonable inferences

fairly deducible therefrom in the light most favorable to the Commonwealth, the party prevailing

below. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       So viewed, the evidence established that Scott Nguyen (Nguyen), while employed as a

teller at First Virginia Bank, found a driver’s license left behind by Troy Dow, a bank customer.

Nguyen gave Dow’s driver’s license and bank account number to Giang Dong as part of a

fraudulent check-cashing scheme. Dong stole checks from his brother Son Dong, and wrote the

checks to Troy Dow as payee.

       On the morning of March 25, 2002, appellant met Giang Dong at Eden Center, a

shopping mall, and asked about money that Dong owed him. Dong informed appellant that he

had some checks from his brother, and appellant agreed to drive Dong to the bank to cash them.

That morning, Dong and appellant drove to six different First Virginia Bank branches in northern

Virginia over a period of ninety minutes. The transactions at three of the branch banks during

that period are the subject of these convictions. The forged checks were presented to tellers at

the various First Virginia Bank branches. When the tellers requested identification to cash the

checks, Dow’s driver’s license was presented. At two of the branch banks when appellant

handed the check to the teller, the teller returned it to appellant and told him “you need the

account number.” Appellant then wrote the number Dong read to him on the check. At the final

branch bank, a teller refused to cash the check. At that point, the two men returned to Eden

Center. There, Dong gave appellant $1,000 from the cash received from the forged checks.

       On May 21, 2002, Detective James Reid of the Fairfax County Police Department

questioned appellant regarding the forged checks. At trial, Detective Reid testified that appellant

told him that he was aware that the forged checks were stolen by Giang Dong from his brother

Son Dong. Reid also testified that appellant disclosed that he knew Scott Nguyen provided Troy

Dow’s driver’s license and bank account number that he and Dong used to cash the checks and

that it was Nguyen who suggested that they use the drive-through windows to cash the forged

checks because there were no video cameras there. When appellant testified at trial, he denied

                                                -2-
telling Reid that he knew the checks were stolen, denied that Nguyen advised him to use the

drive-through windows, and denied that he wrote anything on the front of the checks.

       At the conclusion of the Commonwealth’s case-in-chief, appellant called Giang Dong to

testify as a defense witness. The Commonwealth objected to Dong being called based on

representations from Dong’s counsel that Dong would assert his Fifth Amendment privilege.

The trial court permitted appellant to examine Dong out of the jury’s presence to determine

whether there were questions appellant could ask Dong without infringing on Dong’s Fifth

Amendment privilege, and to determine whether Dong would assert the privilege. When the first

question was asked by appellant, Dong attempted to invoke his Fifth Amendment privilege. The

trial court thereafter directed Dong to answer specific questions asked by appellant. Dong’s

answers were incriminating to him. The trial court concluded that Dong intended to avail

himself of the privilege and that his language barrier prevented him from fully understanding the

trial court’s directives. It ruled that Dong had not waived his Fifth Amendment privilege and,

therefore, was unavailable to be called as a witness by appellant.

       Once the trial court determined Dong to be unavailable as a witness, appellant sought to

introduce into evidence an undated typewritten letter prepared by him and bearing Dong’s

signature. Dong signed only his first name at the bottom of the letter. A portion of the writing

stated Dong asked appellant to drive him “to the bank to cash some checks for him” and that

“Scott gave me information and showed me how to get the money.” The writing included a

statement that appellant “didn’t know anything about this.” The trial court excluded the letter,

finding that it was inadmissible hearsay and was not admissible as a declaration against penal

interest exception to the hearsay rule. It further ruled that it was not admissible because it was

inappropriate opinion testimony.




                                                -3-
                                            ANALYSIS

           A. FIFTH AMENDMENT PRIVILEGE – UNAVAILABILITY OF WITNESS

       Appellant contends that the trial court erred in ruling that Dong had not waived his Fifth

Amendment privilege against self-incrimination and in not allowing him to call Dong as a

defense witness. He argues that Dong waived his privilege when he provided incriminating

evidence while questioned under oath and in the presence of his attorney, but outside the jury’s

presence. Specifically appellant argues that because Dong’s testimony was given under oath,

and because Dong did not invoke his privilege before he answered appellant’s specific questions,

Dong waived his privilege as to his responsive answers.

       Appellant argues that the trial court’s ruling that Dong had not waived his Fifth

Amendment privilege, resulting in Dong becoming unavailable as a witness, prevented him from

“obtaining witnesses in his favor” under the Sixth Amendment.1 Appellant correctly asserts that

“[f]ew rights are more fundamental than that of an accused to present witnesses in his own

defense.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). “A criminal defendant’s right to

compel testimony is fundamental to sixth and fourteenth amendment due process rights.”

Gaskins v. McKellar, 916 F.2d 941, 950 (4th Cir. 1990). But, an accused does not have the right

to compel a witness to testify if the witness elects to invoke his privilege against

self-incrimination. See Dearing v. Commonwealth, 259 Va. 117, 122, 524 S.E.2d 121, 124

(2000). Both the United States and Virginia Constitutions protect an accused from being

compelled to give self-incriminating testimony. U.S. Const. amend. V; Va. Const. art. I, § 8.

The privilege against self-incrimination “was framed for the protection of the citizen, and


       1
         The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions,
the accused shall . . . be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, . . . .” U.S. Const. amend. IV. See also Va. Const. art. I, § 8
(guaranteeing that “in criminal prosecutions a man hath a right . . . to call for evidence in his
favor”).
                                                  -4-
announced great principles of individual right, to be secured to the people of Virginia and their

posterity forever.” Cullen v. Commonwealth, 65 Va. (24 Gratt.) 624, 628 (1873).

       On the other hand, “the fifth amendment does not provide a blanket right to refuse to

answer any questions. Once a witness asserts his fifth amendment right, some investigative

questioning must be allowed.” Carter v. Commonwealth, 39 Va. App. 735, 747, 576 S.E.2d 773,

780 (2003).2 “[A] witness cannot determine himself if he will be put on the stand, sworn, and

examined. The Fifth Amendment privilege relates only to incriminating statements, not benign

information and not the entirety of a witness’ testimony.” Id. at 749, 576 S.E.2d at 780. The

privilege protects an individual only “‘against being incriminated by his own compelled

testimonial communications.’” Hartigan v. Commonwealth, 31 Va. App. 243, 249, 522 S.E.2d

406, 409 (1999) (quoting Fisher v. United States, 425 U.S. 391, 409 (1976)).

       The trial court determined that Dong had not waived his Fifth Amendment privilege

against self-incrimination. Whether a testifying witness has waived his privilege against

self-incrimination is a question that must be determined “‘from a careful consideration of all the

circumstances in the case.’” Carter v. Commonwealth, 39 Va. App. 735, 750, 576 S.E.2d 773,

780 (2003) (quoting Gosling v. Commonwealth, 14 Va. App. 158, 165, 415 S.E.2d 870, 874

(1992)); see Ronald J. Bacigal, Virginia Criminal Procedure § 7-12, at 262 (5th ed. 2004). “The

trial court must determine which of the witness’ responses may be incriminating and which are

not.” Carter, 39 Va. App. at 749, 576 S.E.2d at 780. When a witness invokes his privilege, the


       2
         Giang Dong was arrested and charged for his alleged involvement in the fraudulent
check-cashing scheme. Due to a scheduling problem, the charges against him were nol prossed
and had not been revived at the time of appellant’s trial, though the Commonwealth asserted that
Dong would be charged again. He was treated as an uncharged witness rather than a
codefendant by the court. See Dearing, 259 Va. at 122, 524 S.E.2d at 124 (holding that the
defendant had no right to compel codefendant to testify if codefendant elected to invoke his right
against self-incrimination); Worrells v. Commonwealth, 212 Va. 270, 183 S.E.2d 723 (1971).
See generally, Ronald J. Bacigal, Virginia Criminal Procedure § 7-12 (5th ed. 2004).

                                               -5-
trial court must still determine which of the questions the witness may be compelled to answer.3

Id. In making such a determination, the trial court “must indulge every reasonable presumption

against” waiver of fundamental constitutional rights. Grogg v. Commonwealth, 6 Va. App. 598,

611, 371 S.E.2d 549, 556 (1988). We give the factual findings of the trial court “in making [this]

admissibility determination . . . the same weight as . . . a finding of fact by the jury.” Rabeiro v.

Commonwealth, 10 Va. App. 61, 64, 389 S.E.2d 731, 733 (1990).

       In concluding that Dong had not waived his privilege against self-incrimination, the trial

court acknowledged:

               It’s a very close question as to whether or not he waived that right
               by answering some of those questions. But I’m not sure if the
               witness understood exactly. I’m not sure that when he was
               directed by the court to answer one question he did not think that
               he was supposed to answer the rest.

The trial court found that Dong “attempted to exercise his rights, and I think through some

confusion, perhaps caused by myself, he ended up answering some questions. I think he did so

unknowingly, inadvertently and perhaps some of that was because of the language.”

       The record reflects that Dong required an interpreter to understand appellant’s questions.

When appellant asked Dong, “Did you tell Mr. Tran that the checks that you had were stolen?”

Dong stammered briefly and then fell silent. At that point, the interpreter intervened and asked if

the trial court wanted her to translate. When she translated the question, Dong immediately

responded, “I would like to take my Fifth Amendment.” The trial court agreed that this assertion

of the privilege was proper as to the question asked. Then appellant asked Dong: “You were

accused of committing crimes based on these check cashing incidents, correct?” Again, Dong


       3
        The trial court may enforce its order for a witness to testify through its contempt
powers. See Sapp v. Commonwealth, 263 Va. 415, 425, 559 S.E.2d 645, 650 (2002). See also
Code § 18.2-456(5) (providing that power to punish summarily for contempt where a witness
disobeys or resists a lawful order of the trial court).

                                                 -6-
invoked the Fifth Amendment, but appellant challenged his use of the privilege. The

Commonwealth agreed that the particular question did not require an incriminating response, and

the trial court directed Dong to answer. At that point, Dong’s attorney asked to speak with his

client. The trial court denied his request. It is unclear from the record whether Dong understood

the distinction between questions he was required to answer and those to which he could invoke

the privilege.

       After the trial court directed him to answer the question, Dong proceeded to respond to

all of counsel’s questions. He testified that he signed his name at the bottom of the typewritten

letter composed by appellant and that he remembered where he was when he signed it.

Appellant contends that these responses by Dong amounted to a waiver of his privilege against

self-incrimination. We disagree.

       Dong’s testimony to that point simply authenticated the typewritten letter handed to him

by appellant.4 The trial court prompted counsel to press Dong to either assert the privilege or to

waive it:

                 TRIAL COURT: I thought you were going to ask one more
                 question, [counsel], to see what happens. Maybe you had better do
                 that.

                 COUNSEL: Before you signed that letter did you have a chance to
                 read it?

                 DONG: I have a question. Do I have to answer that question?

                 TRIAL COURT: You have to answer his questions.

       4
         As a general rule, no writing may be admitted into evidence unless and until it has been
“authenticated,” or shown that it is what it purports to be. Proctor v. Commonwealth, 14
Va. App. 937, 938, 419 S.E.2d 867, 868 (1992). See also 2 McCormick on Evidence § 218 (5th
ed. 1999). However, “authenticating a document . . . does not resolve other obstacles that may
prevent the evidence from being admissible.” Hall v. Commonwealth, 15 Va. App. 170, 175,
421 S.E.2d 887, 890 (1992). Authentication only establishes the genuineness of the item. Mere
proof of authenticity does not necessarily resolve the question of admissibility. See 2
McCormick on Evidence § 218, at 36.

                                               -7-
                DONG: I didn’t write this letter.

                COUNSEL: Correct. But did you read it before you signed it?

                DONG: Yes, I did.

Appellant asserts that Dong adopted the contents of the letter by acknowledging that he read it

before signing his name. He argues that because portions of the letter were incriminating to

Dong, he waived his Fifth Amendment privilege when he responded to the above questions. The

record, however, clearly demonstrates that the court compelled Dong to respond to the question

that he read the typewritten letter before he signed his name to it. Once the trial court declared

Dong unavailable as a witness, appellant offered the letter, clearly hearsay, arguing that it was a

declaration by Dong against his penal interest and therefore admissible as an exception to the

hearsay rule.

       It is unclear from the record whether Dong understood that when he was directed by the

trial court to answer questions, that he was required to answer all questions he was asked,

including any that might incriminate him. The trial court considered these circumstances, and

determined that Dong did not waive his privilege against self-incrimination. We agree.

       Like Dong, the witness in Smith v. United States, 337 U.S. 137 (1949), invoked his Fifth

Amendment privilege immediately when called to testify. In Smith, counsel believed that the

witness answered an incriminating question voluntarily during his testimony. When counsel

asked the witness whether he claimed privilege as to that question, the witness responded, “No.”

Counsel then proceeded to have the witness restate the entire substance of his testimony. Id. at

149-51. The Court held that the witness had not waived his privilege: “[w]aiver of

constitutional rights, . . . is not lightly to be inferred. A witness cannot properly be held after

claim[ing the Fifth] to have waived his privilege . . . upon vague and uncertain evidence.” Id. at

150. The Court, persuaded that the witness “relied from the beginning of his examination upon


                                                 -8-
his privilege,” reasoned that “[i]n view of the specific claim of privilege [earlier in the witness’

testimony], it seems unlikely that [the witness] would waive the privilege and testify,

voluntarily.” Id. at 150-51.

       Appellant cites Minnesota v. Murphy, 465 U.S. 420 (1984), for the general principle that

a witness who fails to claim the Fifth Amendment privilege loses the benefit of it, even where the

witness has not knowingly and intelligently waived the privilege. Id. at 428 (citing Garner v.

United States, 424 U.S. 648, 654 (1976)). The Court held in Murphy, however, that there can be

no inadvertent waiver where the individual is effectively denied the free choice to refuse to

answer. See id. at 429 (citing Garner, 424 U.S. at 657). Here, Dong informed the court that he

wanted to invoke his privilege and that he did not want to answer appellant’s questions. The trial

court, aware of Dong’s language difficulties, nevertheless directed him to answer questions

which were, in fact, incriminating to him.

       In Murphy, the defendant admitted to his probation officer that he had committed a rape

and murder unrelated to the conviction for which he was on probation. He never invoked the

Fifth Amendment at any point during the meeting with his probation officer. Here, Dong was

aware of and undoubtedly intended to rely on his Fifth Amendment privilege.

       Unlike the witness in Murphy, Dong attempted to assert his privilege against

self-incrimination numerous times during his examination. Considering the totality of the

circumstances surrounding his testimony, Dong cannot reasonably be categorized as a witness

“who failed to claim the privilege.” Id. at 427.

       Appellant correctly states that when a witness voluntarily discloses an incriminating fact,

he may be compelled to testify to the details surrounding that fact. See Johnson v. Riddle, 222

Va. 428, 431, 281 S.E.2d 843, 846 (1941). “Thus, if the witness himself elects to waive his

privilege, as he may doubtless do, since the privilege is for his protection and not for that of other

                                                 -9-
parties, and discloses his criminal connections, he is not permitted to stop, but must go on and

make a full disclosure.” Brown v. Walker, 161 U.S. 591, 597 (1896). On the other hand, there is

a marked distinction in a witness voluntarily disclosing incriminating information and in a

witness being compelled to disclose such information by the trial court. Where a trial court

directs disclosure of incriminating information, as it did here, there has been no waiver by the

witness of his Fifth Amendment privilege, but rather a compelled disclosure of incriminating

information. Absent a waiver of the privilege by the witness, further examination into the details

of the incriminating information is not permissible. Carter, 39 Va. App. at 747, 576 S.E.2d at

779.

       Finally, in support of his contention that Dong waived his Fifth Amendment privilege,

appellant argues that Dong’s attorney did not object when Dong incriminated himself. However,

the record reflects that when Dong’s attorney asked to speak to him while he was testifying, the

trial court refused to allow him to do so. Moreover, the privilege against self-incrimination is a

“highly personal” privilege and only the witness may assert it. Rees v. Commonwealth, 203 Va.

850, 867, 127 S.E.2d 406, 418 (1962) (citing Powell v. Commonwealth, 167 Va. 558, 576-77,

189 S.E. 433, 441 (1937)). “If the witness wishes to answer, no one can object, and by the same

token no one can waive for him this right.” Powell, 167 Va. at 577, 189 S.E. at 441.

                       B. DECLARATION AGAINST PENAL INTEREST

       Appellant contends that the trial court erred in failing to admit the typewritten letter5 he

prepared and which bore Dong’s signature. Appellant asserts the letter was exculpatory because


       5
           The typed letter composed by appellant which Giang Dong signed states:

                To Whom It May Concern;

                My name is Giang Dong, am twenty years old. I’ve been in this
                country for 5 years. I met Nhi Ai Tran 5 years ago, back then
                when we were in the same ESL class. He graduated from Bell
                                               - 10 -
it shows he was not aware of the check forgery scheme when the checks were cashed. He argues

that because the trial court had declared Dong to be unavailable as a witness, the letter, otherwise

inadmissible hearsay, should have been admitted under the declaration against interest exception

to the hearsay rule. Specifically, he argues that the letter was a declaration against Dong’s penal

_________________________
            Multicultural High School, and moved to Virginia for college a
            few days before his graduation. I moved to Maryland a week after
            Nhi Tran. I attended to Montgomery Community College a year
            after Tran. We were close friends in Boy Scout because he was the
            Senior Patrol leader of troop 494.

               Time passed by, I went to Eden Center, a Vietnamese shopping
               center and came over George Mason University to visit friends. I
               met Nhi Tran there. In fact, he gave me some money so I could
               chill with my girlfriends or chill, or whenever I needed.
               Sometime, he gave me his credit card to cash money too. And, I
               borrowed some money from him.

               Like a few months ago, I reunited with Tran again at Eden Center.
               He asked me for the money that I owned him. At that time, I
               didn’t have any money to pay him back. So in order to pay him
               back, I asked him for a favor, which drove me to the Banks to cash
               some checks for me. This time, I didn’t ask Nhi to use his bank
               account, “Oh, no! You don’t have cash through your bank account,
               Nhi. I have my account here with me,” I told him. Before that,
               whenever I had money order or my friends asked me to cash the
               check or money order, I always asked Nhi to cash for me because
               he got account with First Virginia Bank.

               After I got the money, I gave Nhi $1000.00, and another guy who
               gave me the account information an amount of the money. (That
               guy name Scott, he gave me information and showed me how to
               get the money, after finished we shared the money).

               A few months later, I heard from people that Nhi got locked up
               with some bank thingy. Today, I am writing this letter to let and
               tell everyone know that Nhi Tran didn’t know anything about this.
               I just asked him for a ride so I could cash some money to be able to
               pay him back. The reason that I am telling this because I don’t
               want the judge put Nhi Tran in jail while he’s innocent. Thank you
               very much.

               Once again thank you very much.

                                                        Sincerely, Giang [name handwritten]
                                               - 11 -
interest and that the jury should have been permitted to consider the portions of the letter

asserting that appellant was not aware of the check forgery scheme when the checks were

cashed.

          “The admissibility of evidence is within the broad discretion of the trial court . . . .”

Pavlick v. Commonwealth, 25 Va. App. 538, 543, 489 S.E.2d 720, 722 (1997) (citing Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).

                 Whether an extrajudicial statement is hearsay depends upon the
                 purpose for which it is offered and received into evidence. If the
                 statement is received to prove the truth of its content, then it is
                 hearsay and, in order to be admissible, must come within one of
                 the many established exceptions to the general prohibition against
                 admitting hearsay.

Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992) (citing Evans-Smith

v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436, 441 (1987)). Generally, out-of-court

statements by third parties are inadmissible hearsay because the declarant is not subject to

cross-examination to determine his credibility or trustworthiness of the statement. See Claud v.

Commonwealth, 217 Va. 794, 796-97, 232 S.E.2d 790, 792 (1977).

          “The admissibility of a statement made by an unavailable witness that is against his or

her penal interests ‘is a “firmly rooted” exception to the hearsay rule in Virginia.’” Pitt v.

Commonwealth, 28 Va. App. 730, 741, 508 S.E.2d 891, 897 (1999) (quoting Raia v.

Commonwealth, 23 Va. App. 546, 552, 478 S.E.2d 328, 331 (1996)); see also Ellison v.

Commonwealth, 219 Va. 404, 408, 247 S.E.2d 685, 688 (1978); Hines v. Commonwealth, 136

Va. 728, 747, 117 S.E. 843, 848 (1923). “Underlying this exception is the presumption that

individuals have a strong interest in protecting themselves and thus do not often make statements

that expose themselves to criminal liability unless those statements are true.” Schmitt v.

Commonwealth, 262 Va. 127, 144, 547 S.E.2d 186, 198 (2001) (citing Newberry v.

Commonwealth, 191 Va. 445, 461, 61 S.E.2d 318, 326 (1950)). “When the declarant has made
                                                   - 12 -
an incriminating statement that is contrary to his self-interest, this ‘element of self-interest’

functions as ‘a reasonably safe substitute for the oath and cross-examination as a guarantee of

truth.’” Id. (quoting Newberry, 191 Va. at 461, 61 S.E.2d at 326).

        A party who relies upon the exception to an exclusionary rule of evidence, here hearsay,

bears the burden of establishing admissibility. See Clark v. Commonwealth, 3 Va. App. 474,

480, 351 S.E.2d 42, 45 (1986) (citing Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386

(1984)). Under the declaration against interest exception to the hearsay rule,

                  an out-of-court statement is admissible to prove the truth of the
                  matters asserted therein if three requirements are met: (1) the
                  declarant is unavailable to testify at trial; (2) the statement is
                  against the declarant’s interest at the time it was made; and (3) the
                  declarant is subjectively aware at the time the statement is made
                  that it is against his or her interest to make it.

Rankins v. Commonwealth, 31 Va. App. 352, 362, 523 S.E.2d 524, 529 (2000).

        The trial court determined that Dong had not waived his Fifth Amendment privilege and

was therefore unavailable as a witness. Newberry, 191 Va. at 462, 61 S.E.2d at 326. Only portions

of the typewritten letter, authored by appellant, contained incriminating evidence against Dong,

namely by placing Dong in the car when the forged checks were cashed and by connecting Dong

to Scott Nguyen and the check-cashing scheme. However, the majority of the letter merely

establishes that Dong and appellant were acquaintances through ESL (English as a Second

Language) class, Boy Scouts, and the Vietnamese community and that Dong owed appellant

money.6

        In order for an otherwise inadmissible hearsay declaration against interest to be

admissible, the proponent of the evidence must show that “the declarant is subjectively aware at

the time the statement is made that it is against his or her interest to make it.” Rankins, 31


        6
            Interestingly, the letter contains exact quotes, set off by quotation marks, attributed to
Dong.
                                                  - 13 -
Va. App. at 362, 523 S.E.2d at 529. A statement is against a declarant’s interest if it is against

his pecuniary, proprietary, or penal interest. Hines, 136 Va. at 744, 117 S.E. at 847.

               To be considered as being against the declarant’s penal interest, it
               is not necessary that the statement be sufficient on its own to
               charge and convict the declarant of the crimes detailed therein.
               Rather, the statement’s admissibility is based upon the subjective
               belief of the declarant that he is making admissions against his
               penal interest and upon other evidence tending to show that the
               statement is reliable.

Lilly v. Commonwealth, 255 Va. 558, 573, 499 S.E.2d 522, 533 (1998) (citing Chandler v.

Commonwealth, 249 Va. 270, 278-79, 455 S.E.2d 219, 224-25 (1995) (holding evidence proved

declarant knew statement was against her penal interest because she expressly told police that

“she thought she could be an accessory to the crimes”)), rev’d on other grounds, 527 U.S. 116

(1999). See also Randolph v. Commonwealth, 24 Va. App. 345, 356-57, 482 S.E.2d 101, 106

(1997) (holding evidence proved declarant knew statement was against her penal interest because

she admitted, while under arrest for credit card theft, that she and defendant went to the airport

“to steal . . . to pick pockets”); Raia, 23 Va. App. at 549, 478 S.E.2d at 330 (holding evidence

proved declarant realized the seriousness of her statements against her interest when she

admitted to police that she and defendant had planned to lure the victim to a parking area where

defendant would do “whatever was necessary, including shooting [victim],” to “remove [victim]

from her life” and that the plan “was more her idea than [defendant’s]”).

       Here the critical issue for the jury was whether appellant was subjectively aware that he

was engaged in unlawful activity at the time he assisted in obtaining money through the forged

checks. Appellant sought to establish that his assistance in the scheme was innocent. He asked

the trial court to admit the letter he composed in which Dong who forged the checks declared

appellant lacked knowledge that what the two men were doing was unlawful. In order for the

letter to meet the hearsay exception requirements, it was necessary for appellant to have Dong


                                               - 14 -
sign the letter adopting its contents and, critically, to agree to those portions of the letter

incriminating to Dong. Moreover, in order to satisfy the requirements for admitting a declaration

against penal interest, appellant bore the burden of proving that at the time he signed the letter

Dong was subjectively aware that he was making incriminating statements.

        As the trial date drew closer, appellant approached Dong at a shopping mall with his

typewritten letter and asked him to sign it. Significantly, Dong did not spontaneously make the

incriminating statements to appellant or to any third party. The letter was not addressed to any

particular person, but “To Whom It May Concern,” and was undated. Dong did not initiate the

writing of the letter nor compose its contents. He merely acceded to appellant’s request by

writing his first name on the bottom of the typed letter. Dong also admittedly had a limited

understanding of English.7

        When Dong was asked under oath whether the statement that appellant “did not know

anything about this” was true, Dong replied, “I guess not.” He explained, “Well, just, you know,

what we did we did at the same time you know” and that he only signed it because “by then I

was helping him a little bit. So maybe friendship, I guess.” He also denied that he owed Tran

money as alleged in the letter.

        Based on the evidence presented, the trial court determined that appellant failed to prove

that Dong was subjectively aware that signing the letter was against his penal interest. The trial

court correctly excluded the letter as hearsay.8


        7
         Dong required an interpreter to translate appellant’s questions during his examination as
a witness. When asked if he was able to speak English pretty well, Dong responded, “I don’t
think so.” When asked if he understood a lot of appellant’s questions, Dong replied, “I guess.”
When asked if he was able to read English, Dong responded, “A little bit.”
        8
          Because we hold that the trial court properly excluded the letter as hearsay, we do not
address appellant’s assertion that Dong’s purported comment as to appellant’s state of mind was
fact rather than inadmissible opinion. See Evans-Smith, 5 Va. App. at 196, 361 S.E.2d at 441
(finding that the trial court correctly excluded witness’ statement as inadmissible opinion).
                                                 - 15 -
       Appellant did not challenge that the checks were fraudulently cashed on March 25, 2002.

The sole issue before the jury was appellant’s culpable state of mind, whether he knowingly

participated in the fraudulent scheme. The evidence established that on Saturday morning,

March 25, 2002, Dong and appellant traveled to six different First Virginia Bank branches in less

than ninety minutes. At each bank, appellant assisted Dong in cashing a single check. Each

check was made payable to Troy Dow. In order to cash the checks, appellant admitted that he

wrote the account number on each check as Dong read that information to him and that he then

handed Troy Dow’s driver’s license to the teller. Appellant knew that Giang Dong was not Troy

Dow and that Troy Dow was not riding in the car with them that day. From the evidence, the

jury concluded that appellant knowingly participated with Dong in the fraudulent check-cashing

scheme.

       From the record before us, we conclude that the trial court did not err in ruling that Giang

Dong did not waive his Fifth Amendment privilege against self-incrimination and that he was

therefore unavailable as a witness. We also conclude that the trial court did not err in excluding

the typewritten letter appellant prepared and Dong signed as hearsay and that it did not satisfy

the requirements for admissibility as a declaration against penal interest hearsay exception.

                                                                                    Affirmed.




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