Evidence – Court didn’t err in admitting unavailable witness’s testimony

Where the Commonwealth exercised due diligence in its attempts to procure a man’s live testimony for trial, the trial court did not err in ruling him unavailable, and admitting his preliminary hearing testimony.

Background                              

A jury convicted Jayquane D. Perry on multiple counts, including maliciously shooting into an occupied vehicle. On appeal, Perry challenges the trial court’s ruling that one of the victims was unavailable to testify at trial and admitting his preliminary hearing testimony under the hearsay exception in Virginia Rule of Evidence 2:804(b)(1).

Analysis

Under Rule 2:804(b)(1), a party may offer an unavailable declarant’s sworn testimony from a prior hearing “if it is offered in reasonably accurate form,” the opposing party “had the opportunity to cross-examine the witness, and the issue on which the testimony is offered is substantially the same.” Here, Perry challenges only the trial court’s determination that Ronald Tanner was unavailable.

This court concludes that the trial court did not abuse its discretion by holding that Tanner was unavailable under Rule 2:804(a) and thereby admitting his preliminary hearing testimony under the hearsay exception in Rule 2:804(b)(1). Tanner did not appear for the trial of the co-defendant, Michael Cherry, on July 5, 2022, and the trial judge in that case found him unavailable.

Ahead of Perry’s Aug. 2, 2022, trial date, Detective Gray attempted four times to serve him with a subpoena. The Commonwealth was prepared to proceed with trial on August 2 without Tanner’s live or former testimony. But the trial court granted Perry’s motion for a continuance due to his counsel’s illness.

After court that same day, Detective Phillips located Tanner and personally served him a subpoena for Oct. 27, 2022. Tanner demurred, stating that he felt afraid and may leave the state on or before the appointed day. On the morning of October 27, a man who identified himself as Tanner to the victim advocate on the phone stated that he could not come to court, even after she offered to provide a ride for him.

The trial court signed a show cause order directing Tanner to appear the next day. When Detective Phillips attempted to serve the order that evening, however, the house where he previously found Tanner in August was vacant. Only after Tanner failed to appear for the second day of trial did the trial court rule him unavailable and allow the admission of his former testimony. By this juncture, the trial court was justified in finding that the Commonwealth had exercised due diligence in attempting to secure Tanner’s testimony at trial.

This court rejects Perry’s assertion that Sapp v. Commonwealth, 263 Va. 415 (2002), compels a contrary result. In that case, the victim and a witness came to court on the day of the defendant’s trial but refused to testify out of fear for their personal safety. Although the trial court engaged the two reluctant witnesses in extended colloquies on the record, it neither ordered them to testify nor applied any meaningful “judicial pressure” to “test the resolve” of their refusal to do so. The Supreme Court of Virginia held that the trial court abused its discretion by finding that the witnesses’ testimony was unavailable under these circumstances.

Tanner never appeared before the trial court in this case. Thus, the trial court could not ask Tanner whether he refused to testify and if so, why. Nor could the trial court directly order him to testify or otherwise apply “judicial pressure” to grease the testimonial wheels.

In sum, the trial court’s finding that the Commonwealth exercised due diligence in seeking Tanner’s testimony was not plainly wrong. Thus, the trial court did not abuse its discretion by finding that Tanner was unavailable under Rule 2:804(a) and admitting his preliminary hearing testimony under Rule 2:804(b)(1).

However the final sentencing order erroneously states that Perry was convicted of one count of abduction and one count of attempted abduction. The record reflects that he was convicted of two counts of attempted abduction. The court remands the case to the trial court for the limited purpose of correcting this clerical error.

Affirmed and remanded.

Perry v. Commonwealth, Record No. 1553-24-1, April 14, 2026. CAV (unpublished opinion) (per curiam). From the Circuit Court of the City of Norfolk (Lannetti). (B. Thomas Reed, on brief), for appellant. (Jason S. Miyares, Attorney General; Brooke I. Hettig, Assistant Attorney General, on brief), for appellee. VLW 026-7-146. 10 pp.

Full-Text Opinion

VLW 026-7-146
Virginia Lawyers Weekly