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Defendant Not ‘Unavailable’ After Refusal to Testify

A defendant who invoked his Fifth Amendment right not to testify was not “unavailable” at his robbery trial, and the trial court erred in holding that defendant, as a hearsay declarant, was unavailable for purposes of applying the declaration-against-penal-interest exception to the hearsay rule; however, because the trial court excluded the hearsay evidence on other grounds, the Court of Appeals affirms defendant’s convictions of malicious wounding, robbery and related offenses.

Defendant was accused of beating and robbing $37,000 in cash from a computer software consultant from Atlanta. Defendant chose not to testify at trial. However, his theory of the case, which defense counsel undertook to develop through testimony of defendant’s girlfriend, was that he had met with the consultant to sell him drugs, and the victim tried to get the drugs without paying for them. The alleged hearsay statements purportedly were against his penal interest because they showed his complicity in dealing illegal drugs.

The trial court held defendant established the declarant’s unavailability and the incriminating nature of the statements. However, it ruled the girlfriend’s testimony about defendant’s alleged hearsay statements was inadmissible because the evidence failed to show the statements were reliable.

We hold the trial court erred as a matter of law in ruling that the testimony of the hearsay declarant – defendant – was unavailable. Because defendant had complete control over his own unavailability as a witness, we hold that he failed as a matter of law to prove his testimony was unavailable, and we conclude the trial court’s refusal to admit the statements was not error.

Virginia’s appellate courts have not previously resolved the legal question of whether a defendant’s invocation of his Fifth Amendment right not to testify satisfies the unavailability prong of the statement-against-interest exception.

To be “unavailable,” Virginia recognizes the need for the proponent of the hearsay evidence to have made a good faith effort to obtain the presence of the declarant to provide live testimony at trial. Thus, allowing a defendant to control the admissibility of his prior statement by invoking the Fifth Amendment right not to testify, thereby rendering himself unavailable, would eviscerate the hearsay rule’s unavailability requirement. Such a defendant would be able to have his alleged prior statement admitted into evidence for the truth of its content while simultaneously insulating himself from cross-examination about it. We will not interpret the hearsay rule to allow a defendant to invoke his Fifth Amendment right not to testify as a shield to protect and insulate him against cross-examination only to simultaneously employ that right as a sword to obtain the admission of his alleged extrajudicial prior self-serving hearsay statements.
Numerous federal and state courts, applying similar legal principles, have reached this same conclusion regarding unavailability.

We hold defendant’s decision to invoke his Fifth Amendment right not to testify did not render him unavailable to himself for purposes of the statement-against-penal interest exception to Virginia’s hearsay rule.

Convictions affirmed.

Bailey v. Commonwealth (Coleman) No. 0465-12-2, Nov. 5, 2013; Richmond Cir.Ct. (Snukals) Stacey T. Davenport for appellant; Elizabeth C. Kiernan, AAG, for appellee. VLW 013-7-293, 10 pp.

VLW 013-7-293

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