A prosecutor can use a criminal defendant’s former lawyer to authenticate previous incriminating court testimony when witnesses become forgetful, the Virginia Court of Appeals has ruled.
It’s a common affliction for witnesses in tough neighborhoods. Even though they may have fingered an accused bad guy in a preliminary hearing, their memories grow foggy at the later trial.
That was the prosecutor’s problem in the case of Mario Turner. A key witness previously had testified Turner shot a high school football player as the victim chatted with friends on a Newport News street. At trial, however, the witness said he couldn’t remember much about the actual shooting, even when reminded of his words at the prior hearing.
Lacking an authenticated transcript of the preliminary hearing, the prosecutor called the lawyer who had represented Turner at that earlier proceeding. Over the objections of Turner’s current counsel, the lawyer agreed the witness had, indeed, pointed to Turner as the shooter.
On appeal, Turner argued this was inadmissible hearsay because the forgetful witness was available, right there in court. The three-judge appeals court panel affirmed Turner’s conviction, however, reasoning that the testimony of the witness was not available because of his faulty memory.
The appeals panel also held, as a matter of first impression in Virginia, that it was not improper for the lawyer to testify against his former client. “The Commonwealth only sought to elicit events and information conveyed by [the witness] at a prior public court proceeding, and did not seek to have any information disclosed that was privileged,” wrote Judge Robert J. Humphreys for the court.
The decision affirms Turner’s conviction and 10-year sentence for aggravated malicious wounding and use of a firearm.
By Peter Vieth