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April 21, 2000

Record No. 991920





Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Stephenson, Senior Justice


In this appeal of a criminal conviction, we
consider whether certain evidence was properly admitted by the
trial court.

Karsene Paden was charged with robbery at a
Regal Cinema Theater in Hampton. He was tried, along with two
codefendants, in a bench trial before the Circuit Court of the
City of Hampton. The trial court found Paden guilty of the
offenses charged and the Court of Appeals denied Paden’s petition
for appeal by unpublished order. Paden v. Commonwealth,
Record No. 2567-98-1, May 5, 1999. We awarded Paden an appeal.

Paden first objects to the admission into
evidence of testimony by Detective George Burton concerning a
statement made by Olivier D. Dixon, one of Paden’s codefendants.
Detective Burton testified that Dixon told him that Paden
"was the first one to go up stairs" at the movie
theater, that Paden, accompanied by Antwan Kingsberry, was
"going down the hall with the mask on," that Dixon saw
Kingsberry and Paden putting money into a bag, and that before
the group left the theater, Paden gave Dixon $100. Paden argues
that this testimony was hearsay and thus inadmissible.

Paden acknowledges that Detective Burton’s
testimony regarding Dixon’s statement would have been admissible
as an exception to the hearsay rule if the Commonwealth had
established that Dixon was unavailable to testify, that the
declaration was against Dixon’s penal interest, and that the
statement was reliable. Ellison v. Commonwealth, 219 Va.
404, 408, 247 S.E.2d 685, 688 (1978). However, Paden asserts that
the Commonwealth failed to establish any of these factors.

According to Paden, the Commonwealth did not
establish the first factor, Dixon’s unavailability to testify,
because Dixon was present at trial and his attorney stated that
Dixon was prepared to testify. The Commonwealth argues that,
regardless of the representations made by Dixon’s counsel, Dixon
was unavailable to testify because Dixon could not be compelled
to give evidence against himself and because the decision whether
to testify was personal to Dixon and not his attorney.

The Commonwealth correctly recites the rights
of codefendant Dixon. Nevertheless, until Dixon asserted those
rights, he remained available to testify. Under these
circumstances, the Commonwealth failed to establish that Dixon
was unavailable to testify, and the trial court therefore erred
in admitting the hearsay testimony of Detective Burton. Id.;
see also Atkins v. Commonwealth, 257 Va.
160, 176, 510 S.E.2d 445, 455 (1999)("Nor could the
statement have been admitted as being against penal interest,
since Atkins, the declarant, was not ‘unavailable’ to testify at
trial, which is a prerequisite to invoke that exception to the
hearsay rule."); Chandler v. Commonwealth, 249 Va.
270, 279 n.1, 455 S.E.2d 219, 224 n.1 (1995)("To be an
admissible declaration against penal interest, the statement must
also be made by an unavailable declarant.").

Paden also asserts that the trial court erred
in admitting a letter written by Paden to his brother,
codefendant Antwan Kingsberry, while both were in jail. The
letter, in pertinent part, stated:

[T]his is the deal. I’m going to need to know
what you told your lawyer about the case. Even though I haven’t
seen my lawyer yet I know what I’m saying. I going to deny every
thing. If my lawyer asks me, why would he involve my name, I’m
going to say me & him had an altercation about 8 or 9 months,
meaning he stole some money and a pager from me & haven’t
liked each other since. As far as you and I, on the day of the
robbery, I saw you early that morning and that was it. I was with
Kashamere that day cause I was suppose to baby sit for her. Yo, MAKE
you tell me everything you told your lawyer
. . .

Paden objected to the admission of this letter
asserting it was not an admission or "statement against self
interest." We disagree.

This statement can be interpreted as an attempt
by Paden to establish an alibi through statements consistent with
his codefendant Kingsberry and, thereby, conceal his guilt.
Extra-judicial admissions that tend to show guilt, even if not
confessions, are admissible as party admissions. Prince v.
, 228 Va. 610, 613, 324 S.E.2d 660, 662 (1985).
Accordingly, the trial court did not err in admitting the letter
written by Paden into evidence.

For the error in admitting Dixon’s statements,
the order of the Court of Appeals will be reversed and the
conviction will be vacated. The case will be remanded to the
Court of Appeals with direction that it be remanded to the
Circuit Court for a new trial if the Commonwealth be so advised.

Vacated, reversed and remanded.