Where there is a factual dispute whether a witness had had been properly subpoenaed to testify in a habeas corpus proceeding, the trial court should have conducted an evidentiary hearing. This case is remanded for that purpose.
“In the habeas proceeding, the evidence before the circuit court consisted of the criminal trial record, a sworn declaration from Haynes [the witness], copies of the Commonwealth’s witness subpoenas and returns of service, and an affidavit from O’Boyle [the commonwealth’s attorney].
“Haynes states in her declaration that she never received a subpoena. Conversely, O’Boyle asserts in her affidavit that the Commonwealth issued a subpoena for Haynes. There is a subpoena for Haynes in the record but no return of service.
“Accordingly, a factual issue remains as to whether Haynes was properly subpoenaed as a witness.
“Without a resolution of this factual question, the record was insufficient for the circuit court to determine whether the Commonwealth knowingly presented false evidence regarding Haynes’ absence at trial.
“Therefore, an evidentiary hearing is ‘necessary to produce a complete record that will permit an intelligent disposition of the habeas petition.’”
Little v. Clarke, Record No. 220249; (Order) May 11, 2023. Upon an appeal from a judgment rendered by the Circuit Court of the City of Norfolk. VLW 023-6-014, 21 pp.