COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Overton 

Argued at Norfolk, Virginia 

JEREMY SHAWN WALTON 

 

v. Record No. 2471-97-1 

 

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY

ROBERT SABB MARCH 30, 1999 

v. Record No. 2472-97-1 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Wilford Taylor, Jr., Judge 

 Charles E. Haden for appellants. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

briefs), for appellees. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Jeremy Shawn Walton and Robert Sabb (appellants) were 

convicted in a joint trial for robbery. On appeal, each 

contends that the court erroneously allowed a Commonwealth 

witness to invoke the Fifth Amendment, found that he was, 

therefore, "unavailable" to testify, and admitted his 

extrajudicial statement to police into evidence. Appellants 

also complain that the court erred in denying a continuance to 

permit them to produce a witness that failed to appear at trial 
and refusing to allow a defense witness to testify. Finding no 

error, we affirm the convictions. 

I. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to 

disposition of the appeal. "On appeal, we review the evidence 

in the light most favorable to the Commonwealth, granting to it 

all reasonable inferences fairly deducible therefrom." Martin 

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987). 

 On June 10, 1997, Jimmy Baggett, a white male, robbed a 

branch of the First Union Bank. Tara Ramirez, a teller, 

testified that Baggett entered the bank, "came up to one of the 

desks and was writing."1 He then approached another teller, who, 

"for some reason," asked Baggett for identification. Baggett 

then "went back outside" briefly, returned, entered Ramirez's 

line and presented a note demanding $350. The note also 

threatened Ramirez that Baggett "was pointing a gun at [her]," 

and she noticed he was "holding [something] underneath his 

shirt." Ramirez gave Baggett the money and watched him exit the 

 

 1Ramirez recognized Baggett as "the same person that [had 

reportedly] robbed the bank next door . . ., the afternoon 

before." 

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bank and enter "a gray, big car," parked nearby and occupied by 

"four or five black males." 

 Officer Jimmy Forbes was alerted to the robbery and soon 

located the car described by Ramirez, stopping it at a service 

station. Police arrested and questioned the occupants, four 

black males, including appellants, and a black female. All 

denied involvement in the offense. Baggett was arrested a short 

distance away, waived his Miranda rights, and provided the 

disputed statement to Forbes. In searches incidental to the 

arrests, police recovered $50 and $157 in cash from appellants 

Walton and Sabb, respectively, a screwdriver from the vehicle, 

and a "practice [robbery] note" from Baggett's sock. 

 At trial, Baggett was called as a Commonwealth witness and, 

during initial questioning, acknowledged an acquaintance with 

appellants "[t]hrough drug dealing." However, when the 

prosecutor asked if Baggett was with appellants on the day of 

the robbery, he invoked the Fifth Amendment and refused to 

answer questions related to the offense. After Baggett 

responded similarly to cross-examination, the court declared him 

an unavailable witness. The Commonwealth then recalled Officer 

Forbes and, over appellants' objections, he repeated Baggett's 

earlier statement which implicated appellants in a scheme to 

coerce Baggett to rob the bank and pay a drug debt to appellant 

Walton. 

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II. 

 "It is generally recognized that . . . '[d]eclarations 

against [penal] interest are admissible as an exception to the 

hearsay rule because it is felt that a person will not usually 

make statements damaging to his own interests unless such 

statements are true.'" Randolph v. Commonwealth, 24 Va. App. 

345, 355-56, 482 S.E.2d 101, 106 (1997) (citation omitted). 

Accordingly, 

 [a] third party's statement is admissible as 

an exception to the hearsay rule if: (1) 

the declarant is unavailable, (2) the 

statement was against the declarant's 

interest at the time it was made, and (3) 

the declarant was aware at the time the 

statement was made that it was against his 

interests to make it. Furthermore, the 

declaration [by the unavailable witness] 

must be shown to be reliable.2 

Raia v. Commonwealth, 23 Va. App. 546, 550, 478 S.E.2d 328, 330 

(1996) (citations omitted). "'[W]here proffered hearsay has 

sufficient guarantees of reliability to come within a firmly 

rooted exception to the hearsay rule, the [Sixth Amendment] 

confrontation clause is satisfied.'" Id. at 551, 478 S.E.2d at 

330 (citation omitted). 

 Thus, "'"once it has been established that a third-party 

confession has been made, the crucial issue is whether the 

 

 2Appellants challenge only the court’s findings that Baggett 

was entitled to assert his Fifth Amendment privilege, rendering 

him unavailable, and that his statement was reliable. 

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content of the confession is trustworthy."'" Randolph, 24 Va. 

App. at 356, 482 S.E.2d at 106 (citations omitted). The 

"'"determination of this issue turns upon whether . . . the case 

is one where 'there is anything substantial other than the bare 

confession to connect the declarant with the crime'"'" and rests 

with the sound discretion of the trial court. Id. 

 Here, Baggett's statement implicated him in a bank robbery 

and, therefore, was against his penal interest, irrespective of 

the sufficiency of the statement to convict him of the offense. 

See Chandler v. Commonwealth, 249 Va. 270, 279, 455 S.E.2d 219, 

224, cert. denied, 516 U.S. 889 (1995). Moreover, Baggett 

admitted involvement in unlawful drug trafficking, also clearly 

contrary to his penal interest. See 2 Charles E. Friend, The 

Law of Evidence in Virginia § 18-12 (4th ed. 1996). 

Additionally, Baggett was identified as the robber and fled in 

an automobile occupied by appellants and stopped by police near 

the scene shortly after the offense. The screwdriver used in 

the offense was found in the car, appellants admitted Baggett's 

indebtedness to Walton for drug purchases, and cash was 

recovered from appellants, all consistent with Baggett's 

statement to police. 

 Such evidence, together with other circumstances, provided 

"sufficient indicia of reliability to support the 

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trustworthiness of [Baggett's] statement." Raia, 23 Va. App. at 

551, 478 S.E.2d at 331 (citation omitted). 

III. 

 Appellants next complain that the trial court erroneously 

allowed Baggett to invoke the Fifth Amendment, despite Code 

§§ 19.2-270 and 18.2-262 which clothe such testimony with 

immunity.3 However, Code § 19.2-270, "by its terms, confers only 

use immunity . . . . Such limited protection is obviously not 

co-extensive with the constitutional privilege and cannot 

overcome it, once validly asserted." Gosling v. Commonwealth, 

14 Va. App. 158, 164-65, 415 S.E.2d 870, 873 (1992). Therefore, 

the statute "[does] not supplant [a] witness's constitutional 

privilege to invoke the protection of the Fifth Amendment." 

Boney v. Commonwealth, 16 Va. App. 638, 642, 432 S.E.2d 7, 10 

(1993). 

 Code § 18.2-262 provides, in pertinent part: 

 No person shall be excused from testifying 

 . . . for the Commonwealth as to any offense 

alleged to have been committed by another 

under this article or under the Drug Control 

Act (§ 54.1-3400 et seq.) by reason of his 

testimony or other evidence tending to 

incriminate himself . . . . 

 

 3Appellants also contend that "[t]he trial court erred in 

overruling [their] objection to Baggett's invocation of the 

Fifth Amendment where Baggett had already begun to testify 

substantively against [them]," a question previously raised on 

petition and denied by this Court. 

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The referenced "article" relates to crimes involving illegal 

drugs, not robbery, the instant offense. Thus, the statute was 

inapplicable to Baggett's testimony. 

IV. 

 Appellants next argue that the trial court erroneously 

denied their mid-trial motion for a continuance to secure the 

presence of witness Andre Wiggins. In support of the motion, 

appellants' counsel proffered that Wiggins' attorney had assured 

him "that he's willing to have [him] testify and corroborate the 

testimony of [appellants]" and "feels that he can probably have 

him here tomorrow if the Court is willing to set it over to 

tomorrow." In denying appellants' motion, the trial judge 

concluded that Wiggins was not "a material witness," and the 

court was not satisfied that he "would . . . likely be present 

on another date," noting also that "[w]e're at the end of 

trial." 

 The record discloses that appellants' attorney had caused a 

subpoena to be issued for Wiggins "at the jail" on August 8, 

1997. On August 13, 1997, the subpoena was returned, bearing a 

notation which advised that Wiggins was "not found . . .," 

having been "bonded [on] 08-01-97," and provided his "home 

address [then] on file." Nevertheless, appellants did not 

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resubpoena Wiggins or request a continuance of trial, then 

scheduled for August 26, 1997.4 

 "'The decision whether to grant a continuance is a matter 

within the sound discretion of the trial court. Abuse of 

discretion and prejudice to the complaining party are essential 

to reversal.'" Lowery v. Commonwealth, 9 Va. App. 304, 307, 387 

S.E.2d 508, 509 (1990) (citations omitted). 

 "In determining whether the trial court properly exercised 

its discretionary powers, we look to the diligence exercised by 

the moving party to locate the witness and secure his attendance 

at trial," always "'with due regard to the constitutional 

guaranty of a fair and impartial trial to one accused of crime, 

and the right to call for evidence in his favor.'" Cherricks v. 

Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d 397, 399 (1990) 

(citations omitted). "[C]ontinuances in the midst of trial 

should not be an everyday occurrence." Bennett v. Commonwealth, 

236 Va. 448, 461, 374 S.E.2d 303, 311-12 (1988), cert. denied, 

490 U.S. 1028 (1989). 

 Appellants' proffer suggested that Wiggins' testimony would 

only have been cumulative of appellants' testimonies denying 

 

 4During the colloquy with the court at arraignment, 

appellant Sabb advised the court that his witnesses were 

present. However, appellant Walton answered, "No," to a like 

inquiry, although he raised no objection to the commencement of 

trial. 

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knowledge of the robbery by other occupants of the car. 

Appellants' attorney was unable to assure the court of Wiggins' 

appearance or the availability of his testimony. Moreover, no 

effort had been made to resubpoena Wiggins, or to previously 

seek a continuance, despite the return of service, nearly two 

weeks before trial, advising that he was "not found . . .," and 

including his "home address." Such circumstances clearly fail 

to establish that the court abused its discretion in denying the 

continuance motion. 

V. 

 Lastly, appellants complain that the trial judge erred in 

refusing to permit witness Calvin Williams to impeach Baggett's 

statement that appellant Sabb had accompanied him on another 

bank robbery the day preceding the subject offense. Through 

Williams' testimony, appellants sought to establish that Sabb 

was with Williams at the time of the earlier robbery, contrary 

to Baggett's claim. 

 Assuming, without deciding, that Williams' testimony was 

proper impeachment of Baggett's statement to police, the 

disputed ruling was clearly harmless. In Delaware v. Van 

Arsdall, 475 U.S. 673 (1986), the United States Supreme Court 

instructed that "the constitutionally improper denial of a 

defendant's opportunity to impeach a witness . . ., like other 

Confrontation Clause errors, is subject to . . . harmless-error 

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analysis." Id. at 684; see Williams v. Commonwealth, 4 Va. App. 

53, 78, 354 S.E.2d 79, 93 (1987). A non-constitutional error is 

harmless if "'it plainly appears from the record and the 

evidence given at the trial that' the error did not affect the 

verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 

S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678). "An 

error does not affect a verdict if a reviewing court can 

conclude, without usurping the jury's fact finding function, 

that, had the error not occurred, the verdict would have been 

the same." Id. "The crux of the harmless error analysis is 

whether the defendant received a fair trial on the merits and 

substantial justice has been achieved." Timmons v. 

Commonwealth, 15 Va. App. 196, 199, 421 S.E.2d 894, 896 (1992). 

 Baggett's credibility was sufficiently impeached at trial 

in the absence of Williams' testimony. Baggett was an admitted 

crack cocaine addict, under the influence of the drug during the 

robbery, his second like offense in as many days. Shane 

Ellenson, a cellmate with Baggett, testified that Baggett "said 

ain't nobody know what was going on" when he robbed the bank and 

vowed to falsely incriminate others. Further impeachment with 

respect to the details of an unrelated robbery clearly would 

have not changed the result and any related error did not 

compromise appellants' rights to a fair and just trial. 

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 Accordingly, we affirm the convictions. 

 Affirmed.

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Benton, J. dissenting. 

 I would reverse the convictions of Jeremy Shawn Walton and 

Robert Sabb for bank robbery on June 10, 1997 and remand for a 

new trial. 

I. 

 The evidence proved that Jimmy Baggett robbed the Old Point 

National Bank on June 9, 1997, and robbed the First Union Bank 

on June 10, 1997. On each occasion Baggett entered the bank 

alone. When the police arrested Baggett on June 10, 1997, 

Baggett was alone at a gas station. A police officer put 

Baggett in the back of a police car, told Baggett he was under 

arrest for bank robbery, and read to him Miranda rights. 

Baggett then made the following statement to the officer: 

 [Y]esterday, Monday, the nine, after 

being up all evening doing crack cocaine in 

which Drey, Andre, and Hursh, and the guy 

with the dread-locks in his hair were 

supplying me, started threatening me. When 

they found out I didn't have the money to 

pay then they told me that they were going 

to take me to the bank, any bank, and I was 

going to get their money no matter what I 

had to do. Then they started telling me 

what they were going to do to me and my 

family if I didn't pay them. 

 The guy with the gray sweat shirt put a 

gun to my head and said, I'm telling you, we 

don't play. So then the driver of the 

Cadillac, Andre, told me how to write the 

letter and what to do when I got in the 

bank. And if I put a screwdriver under my 

shirt it would look like a gun. 

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 So some time during the day we went to 

the bank and I did what they told me while 

they, Andre, Hursh, Drey and the guy with 

the gray shirt waited out front of the bank. 

Then when I went inside the bank I was so 

high and scared for my life, and my family, 

I did what they told me. 

 I was thinking about getting the next 

hit. So after we left the bank we went to a 

place on Monitor Apartment D-1, where we 

stayed there until dark. Then we went to 

the Golden Sands Motel where they gave me 

more dope, crack. And I ran into the same 

problem this time. They told me to get more 

money so I could . . . buy crack. . . . 

 The only difference was Hursh was no 

longer there. There was a short guy with a 

camouflage jacket on that kept giving me 

crack. And there was a girl who was a 

whore, who either of the two did I ever talk 

to about this. But on the way to the bank 

we stopped off at some apartments whether he 

gave me some crack. And Andre and the guy 

with the gray sweat shirt, said don't try 

nothing slick, because we know where your 

mom works and we'll get her. 

 The next thing I remember we were in 

front of the bank. I was so high I don't 

even remember the drive from the apartments 

to the bank where they gave me the crack. 

Then I went inside the bank. Came . . . 

out, got in the car. The two guys in the 

back seat, the guy in the gray shirt and the 

one in the camouflage jacket were saying go 

to the Interstate. Then a guy in a blue 

pickup pulled up beside us and was looking 

for crack. So Drey said pull over and let's 

make this quick sale. 

 As soon as the car pulled into Hardees 

parking lot I was still so high and scared I 

threw the money on the seat of the car, got 

out, and ran to Maida where my mom works, 

where I was arrested. Also the driver, 

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Andre, said we don't have to worry they 

didn't see the car and we need gas. We 

can't go to the interstate. 

 Signed Jimmy Baggett. I really did not 

want to do this. 

 When Walton and Sabb were arrested on June 10, 1997, they 

were in an automobile with three other people. Although both 

men admitted that Baggett earlier had been in the car, they 

denied knowing Baggett had robbed the bank employees and denied 

assisting him in the robbery. 

II. 

 To be admissible as an exception to the rule against 

hearsay, the statement of a declarant, who is not a party, must 

meet the following prerequisites: (1) the declarant must be 

unavailable; (2) the statement must have been against the 

declarant's penal interest at the time the statement was made; 

(3) the declarant must have been aware at the time the statement 

was made that it was against his interest to make it; and (4) 

the declaration must be shown to be reliable. See Ellison v. 

Commonwealth, 219 Va. 404, 408, 247 S.E.2d 685, 688 (1978); 

Boney v. Commonwealth, 16 Va. App. 638, 643, 432 S.E.2d 7, 10 

(1993). 

Penal Interest

 "'A statement's admissibility [as a statement against penal 

interest] is based on the [declarant's] subjective belief that 

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he is making admissions against his penal interests.'" Pitt v. 

Commonwealth, 28 Va. App. 730, 743, 508 S.E.2d 891, 898 (1999) 

(citation omitted) (emphasis in original), reh'g en banc 

granted, ___ Va. App. ___, ___ S.E.2d ___ (1999). See also

Chandler v. Commonwealth, 249 Va. 270, 278-79, 455 S.E.2d 219, 

224-25 (1995). The record does not support the conclusion that 

Baggett was aware his statement was against his penal interest 

when he made the statement. Rather, the statement is Baggett's 

self-serving explanation that he committed the robbery because 

of duress. According to the statement, the men threatened 

Baggett because he owed them money, "put a gun to his head," 

told him "what they were going to do to [him] and [his] family," 

and made him commit the robbery to get money to pay his debt. 

 "The common law defense of duress excuses acts which would 

otherwise constitute a crime, where the defendant shows that the 

acts were the product of threats inducing a reasonable fear of 

immediate death or serious bodily injury." Pancoast v. 

Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836 (1986). 

Baggett's statement clearly is an assertion that he committed 

the robberies only because he subjectively believed that he or 

members of his family would be killed if he did not do as 

ordered by the armed men. His final statement, "I really did 

not want to do this" is emphatic evidence that he was attempting 

to excuse his conduct by asserting that he was coerced into 

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acting against his will. Baggett's statement clearly was not 

truly self-inculpatory. Furthermore, no evidence tended to 

prove any circumstances indicating Baggett had a subjective 

belief he was making an admission against his interest. 

Reliability

 The Commonwealth could establish the admissibility of the 

statement "only upon a showing that [the statement] is 

reliable." Ellison, 219 Va. at 408, 247 S.E.2d at 688. Where, 

as in this case, a declarant's statement is also inculpatory as 

to a defendant, it can only be admitted in evidence in the 

defendant's criminal trial when, additionally, the statement is 

proved to be trustworthy. See id. Nothing about the statement 

or the circumstances surrounding the giving of the statement 

imbue it with reliability. Significantly, the United States 

Supreme Court has noted that "'the arrest statements of a 

codefendant have traditionally been viewed with special 

suspicion. Due to his strong motivation to implicate the 

defendant and to exonerate himself, a codefendant's statements 

about what the defendant said or did are less credible than 

ordinary hearsay evidence.'" Lee v. Illinois, 476 U.S. 530, 541 

(1986) (citation omitted). 

 For reasons that I have more fully stated in Pitt, see 28 

Va. App. at 766 n.12, 508 S.E.2d at 909 n.12 (Benton, J., 

concurring in part and dissenting in part), I would hold that 

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Baggett's statement was untrustworthy because of the 

circumstances in which it was made. Baggett was under the 

influence of cocaine; he was being interrogated in police 

custody; he had a motive to mitigate his own criminal conduct; 

and he made accusatory statements placing greater blame upon 

another while seeking to excuse his own conduct. See id. In 

view of these circumstances, the Commonwealth failed to provide 

an "affirmative reason, arising from the circumstances in which 

the statement was made [that] provides a basis for rebutting the 

presumption that a hearsay statement is not worthy of reliance 

at trial." Idaho v. Wright, 497 U.S. 805, 821 (1990). Thus, 

the record fails to establish a basis to admit Baggett's 

statement. 

III. 

 I would also hold that the trial judge erred in barring 

Calvin Williams' testimony. The opportunity of the accused to 

present a complete defense "would be an empty one if the State 

were permitted to exclude competent, reliable evidence bearing 

on . . . credibility . . . when such evidence is central to the 

defendant's claim of innocence." Crane v. Kentucky, 476 U.S. 

683, 690 (1986). 

 In its case-in-chief, the Commonwealth sought to prove by 

Baggett's statement that Walton and Sabb engaged in bank robbery 

and a course of criminal conduct with Baggett on June 9 and June 

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10. Walton and Sabb were entitled to attack Baggett's 

credibility by proving that his narrative of the events was 

false. See Deavers v. Commonwealth, 220 Va. 14, 16, 255 S.E.2d 

458, 459 (1979); Hummel v. Commonwealth, 217 Va. 548, 550, 231 

S.E.2d 216, 217 (1977). Because the trier of fact determines 

the credibility of witnesses, Zirkle v. Commonwealth, 189 Va. 

862, 870, 55 S.E.2d 24, 29 (1949), Walton and Sabb were entitled 

to offer impeaching evidence that had the tendency to cause the 

trier of fact to reject Baggett's testimonial statement. Id. 

Relevant evidence that tends to impeach a witness' credibility 

and assists in an accused's defense is always admissible. See

Hummel, 217 Va. at 550, 231 S.E.2d at 217. 

 The error was not harmless. Williams' testimony, if 

believed by the trier of fact, would have provided a basis for 

the trier of fact to reject Baggett's statement. Baggett's 

statement was the only evidence that tied Walton and Sabb to the 

robbery. The failure to consider Williams' testimony could not 

have been harmless because "[t]he excluded testimony addressed 

the credibility of the only witness against the defendant and 

the weight to be given to his testimony." Jury v. Commonwealth, 

10 Va. App. 718, 722, 395 S.E.2d 213, 216 (1990). 

 For these reasons, I dissent. 

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